Studies in American Political Development, 21 (Fall 2007), 230–265.
Frontlash: Race and the
Development of Punitive Crime
Policy
Vesla M. Weaver, University of Virginia
. . . fear in turn seeks repressiveness as a source of safety. [1970]
—Ramsey Clark, former Attorney General (1967–1969)
I sense there is a tendency to make crime in the streets synonymous with racial threats or the need
to control the urban Negro problem. [1968]
—Dr. Kenneth B. Clark, sociologist whose doll studies were instrumental in showing
that separate was not equal in Brown v. Board of Education
Civil rights cemented its place on the national
agenda with the passage of the Civil Rights Act
of 1964, fair housing legislation, federal enforcement of school integration, and the outlawing of
discriminatory voting mechanisms in the Voting
Rights Act of 1965. Less recognized but no less
important, the Second Reconstruction also witnessed one of the most punitive interventions in
United States history. The death penalty was
reinstated, felon disenfranchisement statutes from
the First Reconstruction were revived, and the
chain gang returned. State and federal governments revised their criminal codes, effectively abolishing parole, imposing mandatory minimum
sentences, and allowing juveniles to be incarcerated
in adult prisons. Meanwhile, the Law Enforcement
Assistance Act of 1965 gave the federal government
an altogether new role in crime control; several
subsequent policies, beginning with the Crime
Control and Safe Streets Act of 1968 and culminating with the Federal Sentencing Guidelines, ‘war
on drugs,’ and extension of capital crimes, significantly altered the approach. These and other developments had an exceptional and long-lasting
effect, with imprisonment increasing six-fold
between 1973 and the turn of the century.1
Certain groups felt the burden of these changes
1. See Figure 1 in this article, depicting the growth of the
prison population and incarceration rate over time.
230
most acutely. As of the last census, fully half of
those imprisoned are black and one in three
black men between ages 20 and 29 are currently
under state supervision. Compared to its advanced
industrial counterparts in western Europe, the
United States imprisons at least five times more
of its citizens per capita.
I argue that the punitive policy intervention was
not merely an exercise in crime fighting; it both
responded to and moved the agenda on racial equality. In particular, I present the concept of frontlash—
the process by which formerly defeated groups may
become dominant issue entrepreneurs in light of
the development of a new issue campaign. In the
case of criminal justice, several stinging defeats for
opponents of civil rights galvanized a powerful
elite countermovement. Aided by two prominent
focusing events—crime and riots—issue entrepreneurs articulated a problem in a new, ostensibly
unrelated domain—the problem of crime. The
same actors who had fought vociferously against
civil rights legislation, defeated, shifted the “locus
of attack” by injecting crime onto the agenda.
Fusing crime to anxiety about ghetto revolts, racial
disorder—initially defined as a problem of minority
disenfranchisement—was redefined as a crime
problem, which helped shift debate from social
reform to punishment. Thus, policies related to
crime were part of a critical episode in race-making
and protracted contest over the political agenda.
# 2007 Cambridge University Press
ISSN 0898-588X/07 $15.00
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 231
What the literature usually treats as independent
trajectories—liberalizing civil rights and more
repressive social control in criminal justice—were
part of the same political streams and the actors
and incentives were components in an unfolding
political drama that would alter significantly
the federal government’s role in crime policy
and, more importantly, race in post-civil rights
America.
First, I elaborate a framework for understanding
how crime came to dominate the domestic agenda.
Next, I go deep into the policy changes and the
public and private debates that surrounded them. I
describe how the pace and direction of federal
action on crime changed, tracing the movement of
crime policy through initial federal attention to
crime, characterized by a focus on fairness in the
system and root causes, and ultimately to the emergence of “law and order” policies. In the process, I
highlight the possibilities that existed in the early
period and the routes that were not followed. I
analyze congressional hearings around important
criminal justice policies, party platforms, campaign
material and speeches, oral histories, key votes,
commission reports, media and secondary accounts,
presidential messages to Congress, media coverage,
and government reports, complimenting these
public sources with internal documents from
Lyndon Johnson’s administration. I focus mainly on
the years from 1958 to 1974, paying closest
attention to the years from 1965 to 1972, during
which time attention to crime and policy change
burgeoned.
The Role of Politics in Crime Policy
Two scholars of criminal justice recently observed:
“Criminologists and sociologists rarely make the political dimension of crime policy a principal concern,
and political scientists almost never do.”2 I begin
with the selective accounts that have begun to fill
the vast lacuna of the political science of punishment.
Marie Gottschalk’s recent book centralizes the role of
early developments and crusades against crime in
leading to the building of the “carceral state”; she
argues that each of these crime campaigns (and the
social movements with which they interacted) left
behind institutional residues which would enable
later developments.3 While race is mentioned, its
influence is underwhelming and often completely
overlooked. In showing how social movements conditioned the latest crime campaign, the civil rights
2. Franklin E. Zimring and David T. Johnson, “Public Opinion
and the Governance of Punishment in Democratic Political
Systems,” Annals of the American Academy of Political and Social
Science 605 (2006): 267.
3. Marie Gottschalk, The Prison and the Gallows: The Politics of
Mass Incarceration in America (Cambridge, UK: Cambridge University Press, 2006).
movement is barely mentioned. While Gottschalk
ably puts the lie to the notion that law and order campaigns were a recent phenomenon, this point comes
at the cost of underestimating the genuine distinctiveness and importance of the crime policy changes that
occurred starting in 1965, which ushered in a truly
new scale of imprisonment. Unlike past episodes,
the latest crime campaign launched the United
States to the world record for incarcerating the
largest proportion of its citizens.
David Garland’s book also provides a long historical perspective. In this work, social, cultural, and
economic developments of “late modernity” greatly
weakened the penal-welfare state.4 A complex,
all-encompassing set of macrohistorical and societal
factors—including but not limited to women
entering the labor force, modernization of capitalist
production, demographic changes and suburbanization, changes in family structure and divorce, and
technological advances in the media (particularly
the rise of television)—together are responsible for
both more crime and more incarceration. Through
this oversimplification, the primary actor is society
itself and every change that characterized the latter
half of the twentieth century; in short, the theory is
overdetermined and offers a very loose framework
for how social disorganization created insecurity
and general anxiety about disorder to the detriment
of laying out more proximate mechanisms
behind policy change and legislative activism on
crime.
Jonathan Simon’s recent book, Governing Through
Crime, refines the generality of Garland’s thesis and
is not beset by Gottschalk’s failure to recognize the
true distinctiveness of the post-1960s crime mobilization. Simon argues that the United States has
created a new political order and mode of governance
that is structured around crime and the fear of crime;
crime has become “a, if not the, defining problem of
government.”5 Governing through crime has become
the dominant mode—whether in managing crime
risk, valorizing the victim in political discourse, or in
using crime as a legitimate reason for action in
other domains. While Simon’s focus is different—
the consequences of this reordering and transformation for democracy—his account compellingly highlights the political dimension of crime politics and the
ways institutions and governance were transformed by
the various “wars on crime.” Using original historical
counterfactuals, Simon convincingly demonstrates
that crime was the path of least resistance for government intervention and innovation and the crime
problem actually became a “solution” to the
4. David Garland, The Culture of Control: Crime and Social Order in
Contemporary Society (Chicago: University of Chicago Press, 2001).
5. Jonathan Simon, Governing Through Crime: How the War on
Crime Transformed American Democracy and Created a Culture of Fear
(Oxford: Oxford University Press, 2007), 13.
232
VESLA M. WEAVER
problem of governance left by the New Deal.
Through his account, we see how crime legislation
during the 1960s was not simply legislation but was
critical in the forging of a new governing coalition
and in presenting crime as a priority for government.
In his words, “That legislation and the metaphoric
mapping of American society it promoted remain, I
would argue, the dominant interpretive grid on
which governable America is known and acted upon
by government officials at all levels.”6
Several scholars have advanced the idea that crime
policy transcends the instrumental logic of reducing
crime and is better understood as deeply symbolic.
The overarching theme in these accounts is that
crime is a symbol for other societal anxieties.7 Scheingold argues that crime policy is a “product of political
decisions rather than moral or functional imperatives.”8 In a similar vein, Morone and Meier argue
that crime and drug policy exist in the category of
“morality politics,” or “policies that redistribute
values rather than income.”9 Race is the axiomatic
example. Racial motivations take a central place in
the crime drama, particularly for Katherine Beckett,
Bruce Western, and Naomi Murakawa.10 In addition
to his economic account of the prison, sociologist
Bruce Western argues that “the prison boom was a
political project that arose partly because of rising
crime but also in response to an upheaval in American race relations in the 1960s.”11 Katherine Beckett
presents a similar argument: “In short, the creation
and construction of the crime issue in the 1950s
and 1960s reflect its political utility to conservative
opponents of social and racial reform.”12 Beckett
identifies a relationship between the initiative of
elites and the media and changes in public opinion.
Natalie Murakawa’s research goes even further in theorizing about the connection between crime and
race. She posits a “race-laden electoral connection”
in which crime policy is developed in a context
6. Ibid., 8.
7. Michael Tonry, Malign Neglect—Race, Crime, and Punishment
in America (New York: Oxford University Press, 1995); Stuart Hall
et al., Policing the Crisis: Mugging, the State, and Law and Order
(London: Macmillan, 1978); Garland, Culture of Control; Stuart A.
Scheingold, The Politics of Law and Order: Street Crime and Public
Policy (New York: Longman, 1984).
8. Scheingold, Politics of Law and Order, 5.
9. Kenneth J. Meier, The Politics of Sin: Drugs, Alcohol, and Public
Policy (Armonk, NY: M.E. Sharpe, 1994); James A. Morone, Hellfire
Nation: The Politics of Sin in American History (New Haven, CT: Yale
University Press, 2003), 455– 77.
10. Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics (New York: Oxford University Press,
1997); Bruce Western, Bruce, Punishment and Inequality in American
Democracy (New York: Russell Sage Foundation, 2006); Loic Wacquant, “The New ‘Peculiar Institution’: On the Prison as Surrogate
Ghetto,” Theoretical Criminology 4 (2000): 377– 89; Naomi Murakawa,
“Electing to Punish: Congress, Race, and the American Criminal
Justice State” (PhD diss., Yale University, 2005).
11. Western, Punishment and Inequality, 5.
12. Beckett, Making Crime Pay, 28–29.
where parties and legislators have incentives to
proffer racial framings of the crime problem, and
because the costs of the policies are “racially concentrated,” there are few checks on the “punitive bidding
wars” that result. Murakawa’s account is a unique contribution of how racial power in the U.S. intersected
with electoral incentives to create a durable punitive
framework. Unlike other accounts, she presents an
aggressive account of why crime policy is tied to
race and in locating the importance of how crime
was framed in the 1960s, providing a rich description
of problem framings and party convergence.
While Murakawa, Beckett, and Western all consider
the civil rights era an important moment in the development of punitive crime policy to different degrees
and make bold claims about the racially inflected
motivations of elites, why that is the case is not
altogether clear and there is a mismatch between
the scale of their claims and the research to support
it, a mix of thick descriptive anecdotes and quantitative analyses that skip over the process of change.
Their research contains a similar view of the
manner in which crime was framed in congressional
legislation during 1960s. Indeed there are symmetries
between our accounts and the emphasis we place on
critical factors—changing crime discourse, the
importance of elites, and the emboldened federal
role. The key difference is that while they assert a connection of civil rights agenda to crime, that connection is underspecified.
All pay attention to this historical moment and to
how legislative incentives are molded by race, yet
the question of “why the 1960s?” remains undertheorized. Why did race come to matter when it did? For
instance, Murakawa hypothesizes that “mandatory
minimum statutes will increase with the waning political power of civil rights agendas”; however, her quantitative analysis, while quite original, does not bring us
near that conclusion, finding only that mandatory
minimums are related to the electoral cycle. Simon
asserts that civil rights was a very probable issue for
“recasting New Deal governance” but that it was
“stymied easily when the crime agenda decisively
sprinted ahead,” without considering the possibility
that these two developments were not merely
coincidental.13
I contend that these accounts are important first
steps in theorizing the role of race in crime policymaking, and their ambiguity is the motivation for a
deeper investigation. These accounts highlight the
political dimension of crime policy and the role of
race, but they hesitate in fully articulating just how
and why racial conflict came to matter in shaping
criminal justice, at which part of the policy process
it came to matter, and the particular mechanisms
that are driving the outcomes; without an adequate
13. Simon, Governing Through Crime, 28.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 233
theory, they fall short of empirically testing their
instincts. This article continues in their path by deepening the mechanisms in their accounts and bringing into historical conversation the path of criminal
justice and civil rights. Rather than being seen as critical of these accounts though, I use them as stepping
stones to further our understanding of the political
development of crime policy. I pause longer at the historical moment they identify, and, in so doing, find a
more complex and nuanced developmental process.
The idea that conservatives used race and crime in
strategic ways is neither novel nor unique to the criminal justice literature; research on the civil rights era
oft mentions law and order and Nixon’s southern
strategy. Although not specifically concerned with
explaining criminal justice, several historical accounts
and one important recent work acknowledge the linkages between social change in the 1960s and repressive responses.14 In his historical account of “law and
order,” Michael Flamm centers race and civil rights in
the analysis: “For conservatives, black crime would
become the means by which to mount a flank attack
on the civil rights movement when it was too
popular to assault directly.”15 Other scholars have
shown how crime has become a racial codeword, strategically employed by vote-seeking politicians.16 The
strong association of crime with blacks leads one
scholar to note that, “later discourse about crime is
discourse about race.”17 However, within political
science, racialized framings are treated as simply a
rhetorical appeal without lasting policy implications.
One must look to other policy domains, particularly
welfare, for research on how race has affected the
development and politics around policies.18
14. Michael W. Flamm, Law and Order: Street Crime, Civil Unrest,
and the Crisis of Liberalism in the 1960s (New York: Columbia University Press, 2005); Thomas E. Cronin, Tania Z. Cronin, and Michael
F. Milakovich, U.S. v. Crime in the Streets (Bloomington, IN: University
of Indiana Press, 1981); Richard M. Scammon and Ben J. Wattenberg, The Real Majority (New York: Coward-McCann, Inc., 1970);
Malcolm M. Feeley and Austin D. Sarat, The Policy Dilemma: Federal
Crime Policy and the Law Enforcement Assistance Administration,
1968– 1978 (Minneapolis: University of Minnesota Press, 1980).
15. Flamm, Law and Order, 22. Also see Steven E. Barkan, Protesters on Trial: Criminal Justice in the Southern Civil Rights and Vietnam
Antiwar Movements (New Brunswick, NJ: Rutgers University Press,
1985); James W. Button, Black Violence: Political Impact of the 1960s
Riots (Princeton, NJ: Princeton University Press, 1978); Cronin,
Cronin, and Milakovich, U.S. v. Crime in the Streets.
16. Tali Mendelberg, The Race Card: Campaign Strategy, Implicit
Messages, and the Norm of Equality (Princeton, NJ: Princeton University Press, 2001).
17. Melissa Hickman Barlow, “Race and the Problem of Crime
in Time and Newsweek Cover Stories, 1946 –1995,” Social Justice 25
(1998): 178; emphasis in original.
18. Martin Gilens, Why Americans Hate Welfare: Race, Media, and
the Politics of Antipoverty Policy (Chicago: University of Chicago Press,
1999); Robert C. Lieberman, Shifting the Color Line: Race and the
American Welfare State (Cambridge, MA: Harvard University Press,
1998); Jill S. Quadagno, The Color of Welfare: How Racism Undermined
the War on Poverty (New York: Oxford University Press, 1994); Ira
Katznelson, When Affirmative Action was White: An Untold History of
The remainder of the article investigates the
process of problem definition and the considerations that went into policy change. But the most
obvious explanation for why crime came to the
center of the agenda is that crime got much worse.
The accounts discussed earlier share a common
feature: they dismiss crime outright as a potential
explanation, but the grounds on which they refute
crime are shaky. Most base their claims on the
axiom of criminological research—that there is virtually no empirical correlation between crime trajectories and incarceration or between the incidence of
crime and public concern with crime.19 While I
agree with this thesis, I propose a different explanation for what motivated policy changes. Proponents of the crime-is-not-cause congregation raise a
panoply of illustrative evidence. Incarceration
steadily increased during the 1970s, 1980s, and
1990s, as the argument goes, regardless of whether
crime was rising or falling. Crime was rising long
before incarceration started to increase. Moreover,
according to this argument, variation in crime
among the states does not explain variation in
state imprisonment. In showing the crime rate to
be largely orthogonal, extant studies have focused
on the crime-incarceration and public opinioncrime linkage, not crime-policy change. However,
studies where incarceration is not the dependent
variable have found an effect of crime; for
example, the national budget and congressional
activity are responsive to changes in crime.20 Other
accounts not only challenge the influence of
crime, but reject the rise in crime in the 1960s
altogether. Evidence for this bold claim is questionable, usually resting on the fact that crime increased
steadily after WWII so that the increase during
the 1960s continued an upward pattern that was
not distinct from the 1950s.21
While it is true that criminal justice legislation has
not responded mechanically with fluctuations in
crime rates, in their eagerness to dismiss crime, they
have thrown the baby out with the bathwater. The
Racial Inequality in Twentieth-Century America (New York: W.W.
Norton & Company, 2005); Ange-Marie Hancock, The Politics of
Disgust: the Public Identity of the Welfare Queen (New York:
New York University Press, 2004).
19. Sean Nicholson-Crotty and Kenneth J. Meier, “Crime and
Punishment: The Politics of Federal Criminal Justice Sanctions,”
Political Research Quarterly 56 (2003): 119– 26.
20. Greg A. Caldeira and Andrew T. Cowart, “Budgets, Institutions, and Change: Criminal Justice Policy in America,” American
Journal of Political Science 24 (1980): 413–38; Willard M. Oliver, “The
Power to Persuade: Presidential Influence Over Congress on Crime
Control Policy,” Criminal Justice Review 28 (2003): 113– 32; Willard
M. Oliver and David E. Barlow, “Following the Leader? Presidential
Influence Over Congress in the Passage of Federal Crime Control
Policy,” Criminal Justice Policy Review 16 (2005): 267–86.
21. Malcolm M. Feeley, “Crime, social order and the rise of
neo-Conservative politics,” Theoretical Criminology 7 (2003): 111– 30.
234
VESLA M. WEAVER
Fig. 1. Imprisonment in the United States, 1925 – 2002.
Source: Sourcebook of Criminal Justice Statistics Online (www.albany.edu/sourcebook/pdf/t6282004.pdf), Table 6.28.2004: “Number and
rate (per 100,000 resident population in each group) of sentenced prisoners under jurisdiction of State and Federal correctional authorities
on December 31. By sex, United States, 1925 –2004.”
Note: Data does not include local jail population.
above points are useful but not to conclude that crime
is wholly inconsequential; a more fruitful discussion is
to understand why crime came to be politicized in the
1960s and not before and unearth the full quilt of
motivations embodied in its being elevated to a the
status of major national problem. In other words,
in refusing to attribute any role to crime, these
studies are forced into the same zero-sum framework
they attempt to challenge. As Figure 2 demonstrates,
crime rose steeply in the 1960s, particularly propertybased offenses. Indeed, as I discuss later, crime
statistics were by far not the objective measure of
actual crime and were often tweaked. So it is possible
that the crime figures were untrustworthy. Setting
aside the accuracy problems in gauging crime,
crime can matter in a host of other ways and the
perception of a crime wave can be even more
important than reality. Media can facilitate a fictitious crime rise through biased coverage or highly
visible crimes, politicians can signal the importance
of the problem by alluding to crime in their campaigns, and the resolution or ascendance of other
issues can give disproportionate influence to the
issue of crime.
I agree that crime is not the primary explanation;
however, I part company with the accounts that
argue that its tenuous relationship to punishment is
simply because it has no link to incarceration or
that the crime problem was overestimated. Crime
did rise quite substantially and the homicide rate, by
far the most unbiased measure of violent crime, saw
a precipitous rise. Demographic changes and technical innovations in crime reporting ensured that even
without society becoming more violent, crime would
have still been a serious problem. Mine is a different
argument—that crime is a partial explanation that
cannot fully explain the ways in which the problem
was addressed. I do not dismiss crime. Much like
the actual presence of Communist affiliates in the
anticommunist frontlash against unions and New
Deal policies—a case I discuss below—crime was a
rising problem in the United States; however, it also
operated as a symbol for other motivations. The question is not just whether crime was a rising problem,
but what factors best explain the way it was defined
and why understandings and approaches changed
and subsequently, why the policies to deal with
crime departed course. Crime might have been
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 235
Fig. 2. The Crime Rate Overtime by Offense Type, 1960 – 2001.
Source: Sourcebook of Criminal Justice Statistics Online (www.albany.edu/sourcebook/1995/wk1/t3103.wk1), Table 3.103: “Estimated
number and rate (per 100,000 inhabitants) of offenses known to police, by offense, United States, 1960–2001.” Based on the Uniform
Crime Reports.
rising, but the primary catalyst was to be found elsewhere. Without elite goals and shift in power, crime
and violence were merely objective conditions. Deep
investigation into how the issue was framed and negotiated in the political process provides crucial insights
into when and under what conditions crime came to
be an urgent social problem.
Several factors cast a doubtful shadow on the intrinsic
value and singular role of crime in shaping the agenda.
First, crime was rising for almost a decade before it was
defined as a problem in the machinery of politics, which
serves as an important reminder of Blumer’s point that
social problems are attached to processes of collective
definition.22 Second, crime can be addressed in a
variety of ways—from more prevention to more punishment. The simplistic assumption that increases in crime
are behind changes that led to increasing prison populations ignores the politicization of the issue, how target
groups were socially constructed, and elite incentives
and agency. A crime boom might explain heightened
attention to the issue but only goes part of the way in
22. Herbert Blumer, “Social Problems as Collective Behavior,”
Social Problems 18 (1971): 298–306.
explaining the punitive path and expansion in federal
authority. Crime is not divorced from other factors
that affect its politicization; only a naı̈ve observer
would conclude that other crime campaigns were
solely about crime. Would one be comfortable assuming, to draw on a few examples, that Prohibition was
only about a rise in alcohol-induced violence, that
concern over immigrant crime in the 1920s had
nothing to do with anti-immigrant sentiment, or that
the scare over cocaine-addicted blacks during the
1920s (or the modern war on drugs) was singularly
motivated? Conversely, the historical record is replete
with cases when crime rose but was not followed by
punitive legislation or a national campaign, including
rising crime in the post WWII period.
So while crime does figure in the story, it is not the
main character. Crime did rise and it does matter, but
two additional factors suggest that it was not the sole
motivation: (1) criminals began to receive longer sentences for the same crimes in the United States (2)
the risk of incarceration increased steeply.23 Therefore, somewhere in the process of policy adoption,
23. Western, Punishment and Inequality.
236
VESLA M. WEAVER
legislators decided to punish the same offenses more.
I will devote much of the following to exploring the
motivations for policy. Mine is an argument not
about whether crime rose, but on how it came to be
defined and politicized.
To cover the expanse of literature on why punitiveness has become gospel, it would take an encyclopedic treatment, which is not my purpose. This article
seeks not to prove existing accounts wrong, but
rather to expand them both in theoretical and
empirical depth. To do that requires the articulation
of a theory that does not isolate crime policy from
the political agenda or from other policy domains.
In so doing, it becomes clear that existing accounts
are not so much wrong as seriously incomplete.
Toward a New Theory
To explain this developmental process in criminal
justice, I advance the notion of frontlash, or the
process by which losers in a conflict become the architects of a new program, manipulating the issue space
and altering the dimension of the conflict in an effort
to regain their command of the agenda. Frontlash
hinges on the presence of winners and losers of a
recent political conflict. In the aftermath, new
norms are born and institutionalized, which “involves
a shrinkage and rejection of positions that previously
had been deemed acceptable.”24 But despite the
score being settled on one conflict, losers do not disappear once defeated, nor do their ideologies.
Rather, the losers seek to “preserve but also perpetuate the distribution of power emanating from those
salient [past] political conflicts,” rendering the
results of the past conflict fundamentally unstable.25
The dissatisfied parties seek openings to mobilize a
new issue, alter the dimension of the conflict, or, in
the terminology of social movement theorists, “shift
the locus of attack.”26 Rather than defend the status
24. R. Kent Weaver, Ending Welfare as We Know It (Washington,
DC: Brookings Institution Press, 2000), 37.
25. Edward G. Carmines and James A. Stimson, Issue Evolution:
Race and the Transformation of American Politics (Princeton, NJ: Princeton University Press, 1989), 6. See also Frank R. Baumgartner
and Bryan D. Jones, Agendas and Instability in American Politics
(Chicago: University of Chicago Press, 1993), 6: “So long as the
possibility exists of mobilizing the previously indifferent through
the redefinition of issues, no system based on the shared preferences of the interested is safe.” And William H. Riker, Agenda Formation (Ann Arbor: University of Michigan Press, 1993): “The
political forces are the interests of politicians: previous winners,
of course, seek to maintain the status quo of issues on which they
have won, while previous losers seek to bring up new issues on
which they can win.”
26. E. E. Schaattschneider, The Semisovereign People: a Realist’s
View of Democracy in America (New York: Holt, Rinehart and
Winston, 1960). Mayer N. Zald and Bert Useem, “Movement and
Countermovement Interaction: Moblization, Tactics, and State
Involvement,” in Social Movements in an Organizational Society, Collected Essays, ed. Mayer N. Zald and John D. McCarthy (New Brunswick, NJ: Transaction Publishers, 1987), 247–72.
quo ante then, losers propose new programs of
action. By maneuvering into a new issue space and
carving a new niche to mobilize around, the disadvantaged/defeated group opens the possibility of reversing its fortunes without violating established norms.
If the issue definition is successful, it can manipulate
the agenda in a way favorable to the interests of the
losers and displace the prominent position of the
old agenda issue. In addition to elite incentives catalyzed by defeat, an exogenous shock or dramatically
altered environment can assist the mounting of a
new issue campaign. Crises can provide opportunities
to frame the introduction of a new problem, allowing
the defeated group to “propose[s] a new interpretation of events” and “change the intensities of interest” in a problem.27 Finally, the losing actors from
the previous struggle, though losing issue predominance, might remain in influential positions. Along
with the articulation of a new issue problematic,
entrepreneurs seek issue dominance by creating a
monopoly on the understanding of an issue, associating it with images and symbols while discrediting competing understandings.
If the set of ideas is powerful enough and focusing
events enlarge receptivity to it, the issue understanding can gain momentum and diffuse quickly, and
frontlash will enter into its last stage—issue capture.
Once one party in the conflict develops a monopoly
on the understanding of an issue such that continuing opposition is a liability, “strategic pursuit” will
usually ensue; in seeking to avoid blame, the disadvantaged side will position themselves nearer rivals
despite this being outside their “zone of acceptable
outcomes.”28 However, strategic pursuit can be a
“perilous strategy” because it signals endorsement,
narrowing the set of alternatives and discounting
early conceptions; thus, it may further instantiate
the issue understanding and proscribe policy
options.29 Once the issue is captured, “secure policy
subgovernments can and do build up around particular issues.”30
I show how frontlash occurred in crime policy, a
critical episode in the development of criminal
justice outcomes in the United States. The 1964
Civil Rights Act ended the “world’s most developed
system of racial servitude” and institutionalized
strong norms of racial equality.31 As Crow had loosened its clutch, leaders of the old paradigm
remained and sought to enlarge and shift the conflict
strategically. They mobilized a new form of resistance,
27. Baumgartner and Jones, Agendas and Instability in American
Politics, 8.
28. Weaver, Ending Welfare as We Know It.
29. John B. Gilmour, Strategic Disagreement: Stalemate in American
Politics (Pittsburgh, PA: University of Pittsburgh Press, 1995), 55.
30. Baumgartner and Jones, Agendas and Instability in American
Politics, 34.
31. Katznelson, When Affirmative Action was White.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 237
shifting to a new policy domain by moving crime and
criminal justice to the agenda. Two focusing events—
crime and riots—facilitated mobilization of the issue.
The violent insurrections that swelled in the mid- to
late-1960s created an opportunity to sharpen the connection of civil rights to crime. Strategic policymakers
conflated these events, defining racial disorders as
criminal, which necessitated crime control and depoliticized the grievance. Although tinged with racial
subtext, this causal story did not disturb the newly
institutionalized egalitarian precepts. Conservatives
pitted toughness on crime against vigorous advocacy
of civil rights by building a durable connection
between black activism and crime. The liberal social
uplift approach atrophied under the weight of this
powerful doctrine. Sandwiched between two traps—
being soft on crime and excusing riot-related violence—liberals had to forgo their ideal outcomes
and moved closer to the conservative position. They
engaged in strategic pursuit, emulating the conservative issue understanding, implicitly endorsing the linkages conservatives had drawn. This vindicated the
conservative law-and-order doctrine and deepened
the association between crime and racial discord,
and ultimately, collapsed the liberal alternative for
dealing with root causes. Once partisan consensus
emerged, the elite countermovement was able to
eclipse the dominance of the civil rights issue, assaulting it not from the segregationist platform but where
it was weakest. Strategic entrepreneurs thus used the
crime issue as a vehicle to advance a racial agenda
without violating norms, attaching the outcomes of
old conflict (Great Society programs and civil rights
legislation) to the causes of the new problem—the
breakdown of law and order.
Revisiting the Backlash Narrative
This endeavor is principally geared at understanding
the transformation of criminal justice in the United
States, but in embarking on that exploration, it
became clear that it was part of a much grander
dilemma in racial politics in the United States and
demanded a revision of traditional stories of race
in post-civil rights America. By this point, it is
evident that the frontlash framework is a critique
of another literature and concept that has become
doctrine in accounts of race and American political
development.
Backlash is the politically and electorally expressed public
resentment that arises from perceived racial advance, intervention, or excess. The backlash term was first used
with regularity by journalists, political observers, and
academics prior to and in the wake of the 1964 presidential election. Initially, it described the ‘Wallace
phenomenon,’ or the strong support George
Wallace received in the Democratic primaries of
several Midwestern states and Maryland and especially
in the major cities of these states.32 It referred to
working-class whites who shifted support to Wallace;
thereafter, the label was applied to whites who
deserted the Democratic Party to vote for Barry Goldwater. Later, scholars proffered what became termed
as the backlash thesis (not to be confused with the
earlier generic backlash label), which quickly
became the orthodox view to explain the breakdown
of the liberal New Deal consensus during the
1960s.33 According to this narrative, liberal excesses
in the 1960s caused the middle American voter to
snap back, which led to the conservative hegemony.34
The steady decline of liberalism in the post-civil rights
era is explained by whites who were antagonized by the
Democratic Party’s espousal of “special interests,”
especially minority groups. The “silent majority,” as
they came to be referred to, rejected the encroaching
racial liberalism.
Despite the great common sense appeal and parsimony of the backlash account, it is more of a descriptive narrative and pseudo-theory for describing
anti-black feeling expressed via election outcomes
than a specified theory. In other words, there are
no accounts that fully theorize the backlash
concept, when and under what conditions it occurs,
and the distinctions between its varioius forms—
policy, electoral, political, and general backlash. It is
not clear, for example, where backlash comes from,
whether a policy intervention is required, and what
threshold of reaction must be passed to be considered
a backlash. Much like the ambiguity around its origins
and motivation, it is equally unclear what the ultimate
aim or target of backlash is—repeal of an advance,
desert a party who has gone too far to the extreme,
revert to some prior status quo condition, or simply
to register anger. One might wonder how backlash
is distinct from a moral panic, racial threat, or symbolic racism exploited by elite appeals. The analytic
and theoretic components of backlash have not
been elucidated; rather, backlash has been volleyed
around as a term for describing any negative reaction
to a whole host of racial threats, perceived and
real. This lack of empirical propositions for what
constitutes a backlash has enabled an unspecified
range—from withdrawal of support to outright
32. Michael Rogin, “Wallace and the Middle Class: The White
Backlash in Wisconsin,” Public Opinion Quarterly 30 (1966): 98–108.
33. For an excellent review and critique of the backlash
account, see Joseph Lowndes, The Southern Origins of Modern Conservatism (New Haven, CT: Yale University Press, Forthcoming 2008).
He describes in more detail than I can here the history of the backlash narrative, how it soon became an ideological explanation for
the conservative counterrevolution and is now the “ideological cornerstone” of the conservative strategy.
34. Thomas Byrne Edsall and Mary Edsall, Chain Reaction: The
Impact of Race, Rights, and Taxes on American Politics (New York,
Norton, 1992); Michael Kazin, The Populist Persuasion: An American
History (Basic Books, 1995); Todd Gitlin, The Twilight of Common
Dreams: Why America is Wracked by the Culture Wars (New York,
Henry Holt & Company, Inc 1995).
238
VESLA M. WEAVER
violence—and an uncritical application of the term to
a wide variety of groups and contexts—southerners,
white ethnics, suburban whites, Midwestern Wallace
voters, and working-class whites anxious over competition for jobs. It is therefore unclear which cases of
racial conflict, if any, would not fall into this expansive
and vague definition. In fact, we are not sure where
backlash begins and ends and what the unique
characteristics of backlash are.
This lack of clarity makes it a formidable task to distinguish concepts and raises doubts about the use of
backlash as a conceptual tool. This can best be seen
in the hasty way trends have been labeled backlash,
when a case conveniently falls into the pattern of a
negative reaction to any type of racial progress, combined with the inability to explain why other cases
of racial advance do not fit the pattern. But the backlash account is flawed in another respect: the backlash thesis regards the transformation of politics as a
fundamentally populist reaction. As a result, the backlash thesis overstates the degree to which a reactionary white electorate propelled developments verses
elites. Based on a bottom-up view of growing disillusionment and inertia, this perspective gives total
agency to undefined white masses, removing political
initiative from elites and ignoring the incentives and
opportunities that existed for an elite countermobilization and the new norms of racial equality they were
bound by.35 It tacitly assumes that the developments
that unfolded were driven by the mass public. Elites
are often left out of the backlash story, and when
they do appear, as in the Edsalls’s account, elites are
not formulating discourse or strategizing, they are
onlookers with an eye toward anticipating public reaction, and acting accordingly. But why did the specter
of racial change elicit such a reaction then and not
other times—to the creation of minority majority districts for example? For the answer, we must turn to
elites; in the latter example, it was not in the interest
of conservative elites to argue against redistricting,
because they benefited from it so there was little
incentive to reframe the debate. In spite of these critiques, to fully understand frontlash it is useful to
expound on the distinctions between frontlash and
backlash and situate these concepts in regards to race.
We can think of backlash metaphorically as a
bungee cord that snaps when stretched too far. In
the more active account, seductive racial appeals catalyze the latent racial resentment of the white electorate. Backlash therefore entails a distinct tipping
point; voters withdraw support or become
35. Joseph Lowndes’s book on the conservative mobilization
argues convincingly against the notion of backlash: “the Right
that developed was contingent, mobile and highly adaptive, constantly responding to changing conditions on the ground with
new strategies and tactics” (Lowndes, The Southern Origins of
Modern Conservatism [New Haven, CT: Yale University Press, forthcoming 2008, chap. 7]).
sympathetic to more extreme voices when pushed
too far. Backlash is a mass mobilization of white hostility to an intervention or in support of a candidate,
the epitomizing case being the white vote for
George Wallace in Wisconsin in 1964, or hostility
against such policies as affirmative action or racial
busing. While backlash came to represent a
post-1960s phenomenon, racial backlashes are not
specific to the post 1960s era. Based on an admittedly
fuzzy definition, earlier examples might include backlash to the Brown decision that engendered the radicalization of southern whites and politicians,
immigration reforms of the 1920s, or the 1863
New York draft riots.36
The key distinction then between frontlash and
backlash consists in both the nature of the political
reaction and the actors which carry that reaction to
its conclusion. Backlash is reactive in a conservative
dimension (aims to preserve the status quo and
resist changes through emboldened opposition).
Importantly, the main actors of consideration are
the masses, the voting population which prompt
elites to undertake certain policy positions with race
in the foreground. Frontlash is preemptive, innovative, proactive, and, above all, strategic. Here, elites
aim to control the agenda and resist changes
through the development of a new issue and appropriation and redeployment of an accepted language
of norms. The two conceptions also differ in terms
of what might be a catalyst for their activation. For
backlash, it is sometimes a policy, sometimes a candidate that stokes fears, sometimes broad civil rights
developments that progress to uncomfortable levels
for portions of the electorate. The catalyst in frontlash
is defeat of longstanding political discourse or elite
program.
Instead of a bungee cord recoiling when stretched
too far, we can think of frontlash as water moving
swiftly through a path that eventually comes to an
end, forcing the water to seek alternative routes or
as a weed that after being killed by weed killer
mutates into a new variety, becoming resistant. It is
strategic, alive, complex and sophisticated in its reaction. While racial/ethnic conflicts are good candidates because of the strong norms inherent to
them, not all racial conflicts would necessarily result
in frontlash. For example, the conflict over affirmative
action did not result in a frontlash; rather it employed
a prevailing norm—colorblind equality—to argue
against “racial preferences” and “reverse discrimination.” The fervent anticommunism spawned by
union centralization in the 1930s is a prominent
example of frontlash. An increasingly activist government sympathetic to unions threatened the interests
of business leaders and conservative legislators.
36. Michael J. Klarman, “How Brown Changed Race Relations:
The Backlash Thesis,” Journal of American History (1994): 81.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 239
This coalition strategically attacked a strong labor
movement (and a supportive federal government)
by connecting it to a “Red menace” and enlisting
the fears of communist subversion, sidestepping
issues of economic concern. Charging instead that
workers’ grievances were based on communist agitation, they argued for a crackdown on radicalism and
labor unrest. These charges had some basis in
reality; there were pockets of Communist Party affiliation in labor organizations including the CIO. Redefining the issue in terms of subversion rather than
legitimate economic demands helped create an
image favorable to business and shifted the dimensions of conflict. As the strategy developed, the American Legion, anti-labor business, and politicians on
the Right claimed that Roosevelt’s New Deal agencies
had been infiltrated by Communists, discrediting the
popular social programs. The House Un-American
Activities Committee (HUAC) was created in 1938
to root out Communist Party influence. “HUAC’s
anticommunist investigations offered a more effective
way to fight the New Deal than opposing its economic
and social reforms.”37 Ultimately, this strategic issue
redefinition and capture weakened the New Deal, liberalism, and labor unions.
By departing from backlash, I do not mean to
impose a false dichotomy of terms, but rather,
sharpen our view of elite incentives and thereby
focus on a neglected history and important part of
the conservative strategy. Rather than dismissing the
backlash thesis writ large, frontlash revises and
elongates the view of post-civil rights developments
and brings into view developments that have been
treated as merely coincidental. Without frontlash,
we would mistakenly attribute the rise in incarceration
to the much later war on drugs and fail to see how it
developed out of the struggles of the 1960s. By
sidestepping consideration of elite incentives, the
backlash framework cannot explain the sudden
mobilization of the crime issue and its connection
to the rights revolution. It can explain why in the
hundreds of articles and books on the Civil Rights
Movement and its decline, there is comparatively
little on its linkages with the issue that replaced it
on the agenda and became a cornerstone of the conservative domestic program.
Frontlash adds another dimension to the backlash
narrative because it can show how policies that
usually are considered separately are actually part of
same political history; developments in one domain
can and do influence strategic decisions or new developments in another, ostensibly unrelated, sphere. In
explaining the sustained shift in criminal justice
then, my account unintentionally posits a different
view of why the powerful civil rights agenda eroded.
37. Ellen Schrecker, The Age of McCarthyism, a Brief History with
Documents (Boston, MA: St. Martin’s Press, 1994).
The Political History of Crime Policy: From Great Society
to War on Crime
Prior to 1960, federal involvement in crime and law
enforcement was limited.38 Presidents rarely
touched on crime in their public addresses or
private messages; party platforms were silent on the
issue. The federal government was proscribed from
interfering in what was believed to be a state and
local concern, only having jurisdiction in cases of
treason and espionage, mail fraud, and counterfeit
crime. The Department of Justice (DOJ) was a small
entity which only prosecuted Internal Revenue
Service (IRS) cases with an emaciated budget.
Federal Bureau of Investigation (FBI) Director J.
Edgar Hoover was the sole voice in this vacuum, fervently speaking about the mounting rate of serious
crimes and predicting a further increase. He lamented the public’s “submissive attitude,” saying “law
enforcement has not yet attained the measure of
public support it justly deserves.”39 He was partially
right; the FBI reports showed that crime was increasing—it increased 66 percent in the 1950s—but
there was little concern at the federal level. Rising
crime rates in the 1950s, as far as we can take them
as fact, were not initially followed by punitive legislation or a coordinated federal attack on crime.40 To
the contrary, the only anticrime legislation that
was passed in this decade concerned specific
incidents—gambling and racketeering, crime in
planes, obscene mail, and drunk driving.41
This is not to suggest the federal government had
never been involved in crime control. As Gottschalk
documents, there were several other highly visible
crime campaigns that resulted in “bursts” of federal
attention: kidnapping, attention to immigrant crime
in the 1920s, prohibition, Kefauver’s highly publicized organized crime hearings all over the country,
juvenile delinquency in the 1950s, airplane
38. For a history of anti-crime legislation prior to 1960 see
James D. Calder, The Origins and Development of Federal Crime
Control Policy: Herbert Hoover’s Initiatives (Westport, CT: Praeger,
1993). This discussion should not be taken to suggest the federal
government had never been involved in crime control. Indeed,
many national leaders and presidents employed the crime issue
before Goldwater and Nixon, including Teddy Roosevelt, Joseph
McCarthy, and Estes Kefauver. However, none of these campaigns
resulted in a sustained national program on crime.
39. J. Edgar Hoover, “An American’s Challenge: Communism
and Crime” [address 9 Oct. 1962], Vital Speeches of the Day 29
(1962): 99; J. Edgar Hoover, “Our Common Task: When Crime
Occurs, There has been a Failure Somewhere” [address 3 Oct.
1955], Vital Speeches of the Day 22 (1955): 43.
40. There are technical reasons to be dubious about the accuracy of crime rates. Until the 1970s, the sole source of crime was the
FBI’s Uniform Crime Reports. The Bureau today strongly discourages
academics and others from using its statistics prior to 1960 because
police departments varied widely in their professionalism and participation in the UCR was sporadic.
41. The lone exception to this was a bill that attempted to challenge the Supreme Court’s ruling on confessions, the Mallory rule.
The bill passed in the House but was not acted on by the Senate.
240
VESLA M. WEAVER
hijackings, and the heightened attention to crime
and prostitution during the Progressive Era.42
Hoover’s Wickersham Commission ( formally the
National Commission on Law Observance and Enforcement) proposed a national effort to conduct
research and improve law enforcement and overhaul
criminal procedure. Indeed, many national leaders
and presidents employed the crime issue before Goldwater and Nixon, including Teddy Roosevelt, Joseph
McCarthy, and Estes Kefauver. However, none of
these campaigns resulted in a sustained national
program on crime. Gottschalk even notes that “in
earlier periods, the state’s skeletal criminal justice
institutions kept a check on these moral crusades”
and that “most of the penal reforms of this era were
enacted and implemented by local or state authorities” even if they garnered national attention.43
As will become clear below, the 1960s crime campaign
is set apart from the others in scope and impact.
Figure 3 illustrates dramatic rise in legislative activity
and federal financial commitment to crime and criminal justice over time. The scale of federal involvement was of a new magnitude and changes broke
entirely new ground, establishing new precedents
for federal action. The federal government had
waged crime wars before, but never in ways that
changed its role or shifted authority away from the
state’s constitutional powers to police.
The beginning of the next decade continued in the
same direction. Hoover called for the adoption of
“stiffer laws and a more stern policy” but got instead
legislation that expanded the rights of defendants
and increased fairness in the system.44 Several
Supreme Court rulings—Mallory (1957), Mapp
(1961), Gideon (1963), Escobedo (1964), and later,
Miranda (1966)—had focused attention on the
rights of criminal defendants and significantly curtailed the admissibility of evidence and confessions.
While these Court decisions were sharply criticized
for “handcuffing the police,” bipartisan coalitions
supported bail reform, indigent defense, and juvenile
rehabilitation. These early priorities of the rights of
the accused passed with minimal fanfare or controversy. Indeed, conservative congressional leaders
such as Representative Roman Hruska (R– NE) and
Senators James Eastland (D– MS), and Sam J. Ervin
Jr. (D– NC) signed onto Attorney General Kennedy’s
Criminal Justice Act in 1964, which established the
Office of Criminal Justice to oversee fairness in law
enforcement and provided for a public defender
system. However, this legislation did not make a significant change to criminal justice and its budget
was fairly small. Attorney General Robert Kennedy
created a Committee on Poverty and the
42. Calder, Origins and Development of Federal Crime Control Policy;
Morone, Hellfire Nation.
43. Prison and the Gallows, 43– 44.
44. Hoover, “An American’s Challenge,” 99.
Administration of Justice; its report found that
poverty had a greater impact on crime than was commonly assumed and proposed solutions for improving
the handling of poor defendants in court. Several preventative programs aimed at youth crime were begun
as well as treatment programs, prisoner reentry, and
the creation of Halfway Houses.45 Therefore, to the
extent that crime was on the national agenda, it was
geared toward fairness, rights of the accused, and
organized and juvenile crime.
In its first two years, the Johnson administration was
similarly indisposed to making crime a federal issue,
characterized by a mixture of neglect, fairness, and
root causes, with almost equal emphasis on each.46
The administration purposefully avoided making
crime a federal problem, a responsibility that would
put the government in the vulnerable position of
making promises it could not keep and priming
public demand for swift results. Johnson viewed
crime as a problem of urban blight, poverty, and
racial discrimination and as a result, placed a strong
emphasis on understanding underlying causes. He
argued that through a war on poverty, crime would
be reduced, and was hesitant to establish a crime
program for the national government. In 1964,
Johnson aide Jack Valenti wrote a memorandum:
“Very frankly, I disagree with . . . the formation of a
Presidential Committee to study violence.”47 This passivity characterized the initial disposition of the
Johnson administration.
In a striking break with this approach, the very next
year, Johnson announced a “War on Crime.” To
understand why, we must consider the emergence
of the arguments of the crime entrepreneurs in civil
rights debates.
Early Arguments against Civil Rights
Three strategies connected crime to racial change.
The first variation used by early opponents of civil
rights legislation was the argument that the civil
rights demonstrations were criminal acts. Southern
congressmen had been trying for years to apply criminal charges to civil rights leaders and their followers.
A coalition of southern senators ( from Mississippi,
South Carolina, Virginia, Alabama, Arkansas, and
Florida) introduced legislation in 1961 to criminalize
freedom rides and sit-ins. They argued that freedom45. These include most notably President Kennedy’s Committee on Juvenile Delinquency, which spurred preventative programs
like Mobilization for Youth and Harlem Youth Opportunities,
Unlimited.
46. The folders on crime in the LBJ records reveal an erratic
mix of issues, most of which occupied the spotlight only for a
short period and were unconnected to a broader vision. Most
often, the correspondence regarding crime is about blacks
needing redress from violent resistance.
47. Memorandum for Dr. Eric Goldman from Jack Valenti, 3
Jun. 1964, LBJ Library, JL Judicial-Legal Matters 11/22/63–5/5/65.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 241
Fig. 3. Legislative Activity and Budget for Criminal Justice.
Source: Based on data from Baumgartner and Jones Policy Agendas Project. Frank R. Baumgartner and Bryan D. Jones, “Policy Agendas Project,”
National Science Foundation (NSF) grant number SBR 9320922; distributed through the Center for American Politics and Public Policy
at the University of Washington and/or the Department of Political Science at Penn State University. Neither NSF nor the original collectors
of the data bear any responsibility for the analysis reported here. See www.policyagendas.org (last accessed 14 Dec. 2005).
riders were using interstate commerce to incite riots
and should be criminally punished:
As to the so-called freedom riders, it is well
known that this trip originated far from the
South, and had as its announced purpose a
trip through several States where local statutes
would be violated . . . . Instead of being encouraged by groups, and cast into the political arena,
to be made a political issue, they should be
made a violation of the criminal statutes.48
And in some places it was. State legislatures in
Mississippi, Tennessee, Virginia, Georgia, and South Carolina implemented statutes with the aim of criminalizing
NAACP actions.49 Immediately after the lunch counter
48. Sen. John C. Stennis (D–MS) in Proscription of Travel in Interstate and Foreign Commerce for Purposes of Inciting to Riot, 87th Cong.,
st
1 sess., Congressional Record 107, pt. 2, 24 May 1961, 8738.
49. These statutes related to barratry, camperty, and maintenance, which meant arbitrary meddling in or stirring up legal
suits. See Walter F. Murphy, “The South Counterattacks: The AntiNAACP Laws,” in The Era of Integration and Civil Rights, 1930–
1990, ed. Paul Finkelman (New York: Garland Publishing, Inc.,
1992).
sit-ins in 1960, states began passing laws with penalties
specific to sit-ins and boycotters were brought in on
laws that made it illegal to interfere with business.
The second variant to this crime/civil rights linkage
was to argue that civil rights and integration would
portend a crime wave by bringing violence-prone
blacks to white neighborhoods.50 Senator Richard
Russell’s statement in 1960 is representative:
And, Mr. President, I say that the extremely
high incidence of crimes of violence among
members of the Negro race is one of the
major reasons why the great majority of the
white people of the South are irrevocably
opposed to efforts to bring about enforced
association of the races.51
Conservative congressmen also blamed “civil rights
havens” for the increase in crime; Representative
John Bell Williams (D– MS) argued:
50. Flamm, Law and Order; Murakawa, “Electing to Punish.”
51. Sen. Richard B. Russell qtd. in Leasing of a Portion of Fort
Crowder, MO—Civil Rights, 86th Cong., 2nd sess., Congressional
Record 106, pt. 5, 16 Mar. 1960, 5721.
242
VESLA M. WEAVER
This exodus of Negroes from the South, and
their influx into the great metropolitan
centers of other areas of the Nation, has been
accompanied by a wave of crime . . . . What
has civil rights accomplished for these areas?
. . . Segregation is the only answer as most
Americans—not the politicians—have realized
for hundreds of years.52
In the congressional debates over 1964 Civil Rights
Act, opponents frequently referred to the fact that
crime rates of Southern blacks were much lower compared to their Northern counterparts.53 In attempting to break a filibuster of the bill, Senator Jacob
Javits (R– NY) contested the strategy to link crime
and civil rights: “Another favorite diversion of the
bill’s opponents consists of alluding to crime rates
in major northern cities.”54
Finally, as the first major legislative civil rights victories were under way, this argument was refashioned
from prediction to explanation to challenge the
passage of the Civil Rights Act of 1964. In the
summer of 1964, the Harlem and Rochester race
riots gave fuel to the familiar argument that had
been percolating in the background of civil rights
debates since the 1957 Civil Rights Act—that civil
rights would engender a crime wave and integration
would bring lawlessness. In this version of the argument, several Congressmen campaigned against
passage of the Civil Rights Act of 1964 using the
riots as testament to the fact that civil rights bred lawlessness. They argued that because the racial unrest
happened in northern states with the most progressive social policy and civil rights, then poverty and
racial discrimination could not be to blame. Instead,
cities like Philadelphia and Rochester were described
as being “victims of their own generosity”; by opening
their arms to southern blacks, they were repaid with
crime-ridden slums and black discontent. According
to one of the major sponsors of later crime legislation,
Senator John McClellan (D – AR), “The Civil Rights
law is calculated to provoke, and is provoking, an
attitude that is contrary to the concept of bringing
52. Rep. John Bell Williams in Northern Congressmen Want Civil
Rights but their Constituents Do Not Want Negroes, 86th Cong., 2nd
sess., Congressional Record 106, pt. 4, 9 Mar. 1960, 5062 –63.
53. Linking blacks to crime was not unique to the civil rights
era. It was a prominent theme in the First Reconstruction. Theodore Roosevelt was infamous for his exhortations that black criminals were “the worst enemy of his race”: “Laziness and
shiftlessness, these, and above all, vice and criminality of every
kind, are evils more potent for harm to the black race than all
acts of oppression of white men put together.” See Theodore Roosevelt, Theodore Roosevelt on Race, Riots, Reds, Crime, comp. Archibald
B. Roosevelt. (West Sayville, NY: Probe Publishers, 1968).
See also: David M. Oshinsky, Worse than Slavery: Parchman Farm
and the Ordeal of Jim Crow Justice (New York: Free Press, 1996); Christopher R. Adamson, “Punishment after Slavery: Southern State
Penal Systems, 1865– 1890,” Social Problems 30 (1983): 555–69.
54. Two Myths Behind Civil Rights Bill Opposition, 88th Cong., 2nd
sess., Congressional Record 110, pt. 8, 5 May 1964, 10057.
about an understanding and harmony between the
races.”55
After the 83-day long filibuster led by southern
Democrats, the civil rights bill was passed. This
passage signified a major turning point in the
civil rights conflict. Rather than a mere legislative
setback, it marked a successful challenge of the segregationist platform and the establishment of the legal
norm of racial equality. But racial contests were far
from settled. It was a stinging defeat for conservatives,
who now had a lingering incentive to make an
end-run around civil rights. Rather than fading, the
segregationists’ crime-race argument was reframed,
with a slightly different veneer, and became the
fulcrum of the conservative’s proposed agenda on
crime. Although initially ineffective, this argument
would provide the backbone of the successful campaign for tougher crime policy.
The following case illustrates how a losing group
capitalizes on their interest in regaining dominance
by enlarging the conflict. First, I show how arguments against civil rights were leaked into crime
policy debates. In this, we will see how entrepreneurs
leverage focusing events in order to define a
problem, associate it with favorable images, and
ultimately, secure a monopoly on the policy
understanding.
Expanding the Conflict: “Goldwater’s Nightmares”
Before 1960, crime was about the drunk, the
“mad-dog sex killer,” and the juvenile hoodlum.
FBI Director Hoover tried to bring crime to the
policy agenda and to public concern, most often
proclaiming the link between communism and
crime, but before 1960, he was practically alone.56
When crime was discussed, there was no explicit
and very little implicit connection of crime to
blacks.
Despite Hoover’s early rumblings about crime rises,
the person to succeed in raising the public’s awareness of crime and its connection to a wide variety of
other social malaise was Barry Goldwater. Goldwater
warned voters in 1964:
[C]hoose the way of this present Administration and you have the way of mobs in the
street, restrained only by the plea that they
[referring to black militants and civil rights
55. Sen. John L. McClellan in “Crisis in Race Relations—How
Will It Be Met? Interviews with Congressmen around the Nation,”
US News & World Report, 10 Aug. 1964, 23–40, 28.
56. In his early speeches on the topic, he focused on salaries
for police, on corruption, juvenile crime, and most heavily on the
connection of crime to communism. His admonitions included
an incoherent description of the causes, which ranged from “selfindulgence” and the “moral breakdown of young people” to communism (the “sinister partner” of crime), to court decisions that
help law violators.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 243
demonstrators] wait until after election time to
ignite violence once again.57
To dramatize this point, the Goldwater campaign
designed a television advertisement called “Choice”
which depicted the mayhem of the Harlem riots in
1964, later pulled because it was so inflammatory.58 It
was replaced with an advertisement that began with
these words: “Graft! Swindle! Juvenile Delinquency!
Crime! Riots!”59 The same Goldwater who had
opposed Kennedy’s proposed National Crime Commission, arguing that it would lead to a national police
force,60 wanted crime to be a focus of his presidency:
Crime grows faster than population, while
those who break the law are accorded more
consideration than those who try to enforce
the law . . . . Our wives, all women, feel unsafe
on our streets . . . . Perhaps we are destined to
see in this law-loving land people running for
office not on their stainless records but on
their prison records.61
Goldwater is credited in almost folklore like ways
with the first intimations of “law and order.” While
Goldwater was perhaps the first to vocalize the
crime issue in a major political campaign and this is
dramatized in most accounts, there is evidence that
crime had become an important topic to several
southern Democrats prior to Goldwater’s orations.
In a book about organized crime (the one area
federal legislators could get involved in), John
McClellan devoted the remaining pages to a new
topic on his mind—crime in the streets—singling
out the District of Columbia for particular emphasis
and calling for “heavier penalties for insidious
crimes.”62 Goldwater campaign Director of Field
Operations (and eventual attorney general in the
Nixon administration) Richard Kleindienst has been
credited by some as the driving force behind the
turn toward law and order.63 As already discussed,
crime was a favorite theme of southern Democrats
57. Barry Goldwater, “Peace Through Strength” [address 3
Sept. 1964],Vital Speeches of the Day 30 (1964): 744.
58. The ad is described in Theodore H. White, The Making of
the President 1964 (New York: Athenum Publishers, 1965), 333
fn.9: “Naked-breasted women, beatniks at their revels, Negroes
rioting and looting in the streets succeeded each other in a phantasmagoric film which, when shown to Goldwater, he flatly
refused to authorize.”
59. Transcripts and video files of campaign commercials were
obtained from the American Museum of the Moving Image, The
Living Room Candidate, Presidential Campaign Commercials
1952– 2004, http://livingroomcandidate.movingimage.us/index.
php; last accessed 4 Aug. 2007.
60. Congressional Quarterly Almanac (Washington, DC: Congressional Quarterly News Features, 1960), 701–2.
61. Goldwater, “Peace Through Strength,” 746.
62. John L. McClellan, Crime Without Punishment (New York:
Duell, Sloan and Pearce, 1962), 286.
63. Gerald Caplan, “Reflections on the Nationalization of
Crime, 1964– 1968,” Law and the Social Order 3 (1973): 583– 635.
in expressing opposition to civil rights and
integration.64
The potential explosiveness of this issue was not lost
on the Johnson administration, and his aides recommended that he “immediately call a White
House Law-and-Order Conference” to demonstrate
their commitment to quelling violence: “I am convinced that if the president does not call such a conference, Goldwater will.”65 Although his candidacy
was unsuccessful, Goldwater’s spirited attack laid the
groundwork for extending the debate over civil
rights to a ripe domain. Johnson administration officials produced a memorandum outlining steps for
an extensive agenda on “crime and delinquency”
shortly thereafter, primarily as a reaction to Goldwater’s fevered claims: “Although there are existing
Federal programs . . . . The obvious public concern
over this matter during the campaign . . . warrant a
new look.”66 In March 1965, Johnson issued his first
speech on crime and message to Congress—the first
such presidential address specifically on crime—and
sent an anti-crime program to Congress with several
requests for new legislation. The most important of
these, the Law Enforcement Assistance Act (LEAA),
provided for a three-year pilot program of federal
aid to states and localities for the purpose of innovating their criminal justice systems through training
programs and experimental projects. After the bill
glided easily through Congress without a negative
vote, Johnson signed the LEAA, saying, “This bill
puts the federal government in partnership with our
states and local communities in performing the first
and most important function of government: the
preservation of law and order.”67
Although it was never budgeted more than $7.5
million annually—a pittance in comparison to the
criminal justice system today—”the result was a level
of federal action that would have been inconceivable
ten years earlier.”68 It was the first federal program
specifically for the purpose of helping states
strengthen their law enforcement capabilities and
only the second time to that point that the federal
government invested its own resources in the national
crime problem.69 It was the model for several pieces
64. For a more complete discussion, see Murakawa, “Electing
to Punish.”
65. “Law and Order Conference,” LBJ Library, JL 6 Law Enforcement—Police Matters 11/22/63– 10/22/65.
66. Crime and Delinquency Memo, LBJ Library, JL 3 Criminal
Matters 11/22/63– 6/30/65.
67. Draft of Statement for Law Enforcement Assistance bill,
21 Sept. 1965, LBJ Library, LE/JL 6.
68. Congress and the Nation, Vol. 2: 1965 –1968, (Washington,
DC: Congressional Quarterly Service), 310.
69. The Juvenile Delinquency and Youth Offenses Control Act
in 1961 was the first. See Congressional Research Service, Library of
Congress, “The Law Enforcement Assistance Administration
(LEAA): The Title I Program of the Omnibus Crime Control and
Safe Streets Act of 1968, As Amended.” Obtained from Lexis
Nexis Congressional.
244
VESLA M. WEAVER
while OLEA was housed in the Justice Department.
Originally Senators Phillip Hart (D– MI) and Jacob
Javits (R– NY) had proposed having the OLEA
grants being housed under the Department of
Health, Education, and Welfare (HEW).
The political arena often deals with problems, but
when objective conditions pass a threshold where
they become appealing and are rich in content for
shifting the debate, they transcend the status to
become focusing events. In the next section, I show
how two crises became focusing events, opening a
critical window of opportunity for issue entrepreneurs to elevate a problem to terms amenable to
the defeated framework. Specifically, I show how nonracial conditions were interacted with racial ones to
heighten the salience of the crime problem, associate
it with racialized images, and ultimately dominate the
agenda.
of subsequent legislation from the Safe Streets Act
three years hence to Clinton’s omnibus crime
control bill three decades later. It established the
Office of Law Enforcement Assistance (OLEA) in
the Department of Justice. While conceived with the
intention of improving local law enforcement and
updating practices and researching the nature of
crime, it marked the beginning of an expanded
federal government intervention in the area of criminal justice and law enforcement, and spawned the
creation of the Law Enforcement Assistance Administration in 1968, which would ultimately dole out
millions of dollars in federal aid.
However, Johnson remained dedicated to discovering the causes of crime, prevention, alternatives to
incarceration, and rehabilitation. It was this end to
which he established the Commission on Law Enforcement and Administration of Justice by executive
order in 1965 (headed by Attorney General Nicholas
Katzenbach) charged with deep investigation into
these social conditions. The commission’s bestselling
report, The Challenge of Crime in a Free Society, blamed
poverty and ghetto conditions for crime, saying
“crime and recidivism cannot be cured by any
correctional system so long as the roots of crime in
slum living, poverty, and joblessness are allowed to
persist.”70 Although the welfare approach was now
balanced with a harder criminological line, most of
the legislation after Johnson announced his war on
crime was still rehabilitative—including civil commitment of drug addicts, prisoner rehabilitation, and
juvenile delinquency—and had an intensive research
focus based on two commissions to study the causes.
The only punishment-based alteration of the criminal
code was legislation requested by Johnson to protect
civil rights workers from violent attacks. Thus, while
the federal role in crime expanded quite significantly,
the approach did not.
By introducing this legislation, the Johnson administration believed it was diffusing the issue; in an
ironic twist, it actually served to promote it. By
responding to Goldwater and endorsing an anticrime program, the administration inadvertently
created a suitable context in which the crime-race
argument could be reborn and flourish. The
concept of federal aid to state crime programs was
not altogether new. The Kennedy administration
had implemented a $10 million grant program to
aid juvenile delinquency programs as part of the
Juvenile Delinquency and Youth Offenses Control
Act. The key distinction is that this federal aid was
under the auspices of the Department of Health,
Education, and Welfare “to avoid the impression of
federal usurpation of a traditionally local function,”
Focusing Events: Riots and Crime
Two crises served to elevate the status of violence as
a political issue: crime and riots. Just as the Law
Enforcement Assistance Act was being passed, the
August 1965 riot in the Watts neighborhood of
Los Angeles dealt the first blow to the poverty
approach. The most destructive riot in the twentieth
century up to that time ended with 36 dead, more
than 1,000 injured and 4,000 arrested, nearly
1,000 buildings burned, and 15,000 National
Guardsmen deployed. A U.S. News and World Report
headline captured well the contention that
emerged with force: “Race Friction—Now a Crime
Problem? . . . The turn: away from demonstrations
and toward outlawry. For city after city, it’s becoming
a problem of crime control.”71 A series of “long, hot
summers” followed the events in Watts, with outbreaks
in large cities to small communities, from Elizabethtown to Newark to Omaha. During 1967, 41 percent
of cities with populations of more than 100,000 had
experienced a racial disturbance, according to a
national survey.72 Figure 4 illustrates the sharp rise in
riot activity between 1965 and 1969 and the resulting
arrests and injuries.
Rising black insurgency coincided with another
crisis, popular perceptions of the steadily rising
crime rate. By virtually every official report, media
account, or political speech, crime rose in the 1960s
and continued to rise until the mid-1970s. The babyboomer generation had come of age, adding millions
of youth to the population. From 1958 to 1967, the
adolescent population (those aged fifteen to twentyfour) went up 42 percent, the age group that is
70. United States, President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free
Society: A Report (Washington, DC: Government Printing Office,
1967).
71. “Race Friction—Now a Crime Problem?,” U.S. News and
World Report, 30 Aug. 1965, 21–24, 21.
72. Cited in Virgil W. Peterson, “The Problems of Law and
Order,” Current History (1968): 352– 56.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 245
Fig. 4. Riot Incidents, 1954 – 1975.
Source: Based on data from Susan Olzak and Elizabeth West, “Ethnic Collective Action in Contemporary Urban United States,” data from
1954– 1992. NSF proposal SES-9196229. Susan Olzak and Susan Shanahan. “Deprivation and Race Riots: An Extension of Spilerman’s
Analysis,” Social Forces 74 (1996): 931– 961.
responsible for over half of index crimes, including
violent offenses.73 One study found that if crime
were calculated by taking into account the population
in this age bracket and not the total population, the
crime rate would have been stable. Simultaneously,
increasing urbanization added millions to cities,
which have historically experienced more crime.
Figure 2 charts the trend in crime. In addition to
actual rises in criminal behavior due to these
natural demographic changes, there were several
technical reasons for the bloated crime rates.
Crime statistics are based on the FBI’s Uniform Crime
Reports, compiled annually since 1930. The reports
rely on thousands of local agencies voluntarily submitting their number of reported crimes (offenses known
to the police). many jurisdictions had no systematic
approach to reporting these data in place prior to
73. Jerry V. Wilson, Police Report, a view of law enforcement
(Boston: Little, Brown, 1975).
the 1965 legislation’s passing, and the proportion of
those that did regularly report their crime rates
increased steadily throughout the 1960s, which led
to increased precision in the reports. Figure 5 charts
the number of local agencies that submitted their
reported crime to the FBI at least six months during
the year; it steadily increases over these years, doubling from 1964 to 1985, and closely tracks the
increase in crime. In addition to inconsistent reporting, police departments had incentives not to report
poor crime rates, lest they draw the critical eye of
J. Edgar Hoover. This incentive to tamper could
have the could have had serious effects on crime: “it
is doubtful that any large city has continuously participated in the Uniform Crime Reporting [UCR]
program since 1930 without there having been
some purposeful, major defection from UCR standards at some time during that period.”74
74. Ibid., 14.
246
VESLA M. WEAVER
Fig. 5. Crime Reporting and the Crime Rate, 1964 – 1985.
Source: Data on the number of agencies that submitted crime data was provided to the author by the FBI. The total crime rate is from the
Sourcebook of Criminal Justice Statistics Online.
In addition to reporting issues, the policy changes
taking place in the mid- to late-1960s likely biased
the historical trend in crime statistics. First, policy
initiatives such as the LEAA aided the crime rate
increase by professionalizing police departments, particularly rural jurisdictions, where, not coincidentally,
crime rates climbed the fastest. As funds poured into
local police departments and as pressure from the
FBI increased, local manpower and technology for
counting crimes improved dramatically. In addition
to more police departments participating, the
OLEA grants improved the quality of law enforcement and technologies available to them, increasing
public confidence in police departments, which in
turn meant that the public became more likely to
report crimes during this time period.75 Second,
these policies had switched the incentives of the
now 40,000 police departments. Local police
75. Murray Schumach, “Crime Statistics: A Numbers Game,” in
Crime and Justice, ed. Ramsey Clark (New York: Arno Press, 1974),
228–29. Originally printed in The New York Times, 4 Feb. 1968.
See also President’s Commission on Law Enforcement and
Administration of Justice, “Crime in America,” in Crime in
America: Perspectives on Criminal and Delinquent Behavior, ed. Bruce
J. Cohen (Itasca, IL: F.E. Peacock Publishers, 1977), 28:
This margin of unreported crime raises the possibility that even small changes in the way that crime
is reported by the public to the police, or classified
and recorded by the police, could have significant
effects on the trend of reported crime.
departments now had an incentive to inflate their
crime rates because funding was contingent on
need (a concern that was frequently voiced in the
debates over the legislation); Attorney General John
Mitchell later called this the “paper crime wave.”76
Therefore, the “official” reports were perhaps just as
problematic after the passage of the 1965 Law Enforcement Assistance Act as before, but this time in the
direction of overestimating crime.
People also became more likely to report certain
crimes that were previously underreported, including
rape. Some areas underreported crime more, particularly black neighborhoods and ghetto areas where
police were reluctant to respond; greater attention
to crime as a national issue and to inner-city riots
ensured that a greater number of crimes in ghetto
areas were recorded. Another factor contributing to
artificial inclines in the rate of crime was the fact
that, until 1973, the UCR counted only theft over
$50 as “larceny.”77 The largest increase in the crime
rate in the 1960s was in the category of larceny,
which most experts agreed was due to the declining
value of the dollar combined with the unchanged
$50 that triggered a crime being reported as such.
Finally, in deriving its crime statistics, the UCR used
outdated census data, which led to spikes in crime
76. Wilson, Police Report, 43.
77. Indeed, larcenies can be designated as a misdemeanor or
felony, depending on the state.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 247
at the end of the decade because population counts,
the denominator, remained unchanged until the next
census.78
Taken together, these factors resulted in estimates
that were likely biased toward increasing trends,
reflecting improvements in crime reporting rather
than a scourge of crime. A combination of the vagaries of counting across disparate local law enforcement agencies, professionalizing at different paces,
with the demographic realities of increasing urbanization and the baby boomer generation meant that
finding the truth about the rise in the crime rate
was nearly impossible. However, despite the large statistical nightmare that it presented, the fact of a crime
epidemic was no longer disputed by 1965, and a
steady flow of reports and journalistic accounts
ensured that it was communicated to the public. Paradoxically, in addition to other exogenous factors,
LEAA’s passage in 1965 ensured the appearance of
rising crime rates—the fodder which combined with
escalating riot-related violence in the cities was used
to call for more, and more draconian, policies.
The convergence of these critical factors altered
the opportunity for establishing political advantage;
elites leveraged these events to define a new issue,
associate it with certain images and ultimately
secure a monopoly on the issue understanding. The
riots gave a rising crime rate new political currency.
Mediated by elite goals, these conditions ripened
the possibility of forming a new issue and increased
the public receptivity to the original argument
voiced in civil rights debates.
Problem Definition: Racializing Crime, Criminalizing
Racial Struggle
The frontlash relied on a two-stage maneuver. First,
conservatives attached civil rights to lawlessness by
arguing that civil disobedience flouted laws and
would inevitably lead to more lawless behavior.
Thus, nonviolent protest was connected to riots. But
then, through a reverse claim, they disconnected
the relationship they had just sewn, by arguing that
the riots were not connected to legitimate grievances
but to “crime in the streets.”
Old habits did die hard; previously confined to
debates around civil rights, the arguments linking
crime and civil rights were ultimately revived and
inserted into debates around crime, but this time
with more sophistication and aided by real-world
conditions. Early opponents of civil rights legislation
had argued that one form of civil rights protest
would ultimately lead to more law-breaking and
that civil rights and voting rights legislation would
reward such lawlessness. The new norm of racial
78. Daniel Bell, The End of Ideology: On the Exhaustion of Political
Ideas in the Fifties: With a New Afterword (Cambridge, MA: Harvard
University Press, 1988), esp. chap. 8.
equality required that proponents avoid the explicitly racist justifications of its Jim Crow predecessor.
Instead, supporters of punitive crime legislation
now argued that civil rights strategies promulgated
the idea that laws could be obeyed selectively. With
the nation engulfed in violent protests, they reopened this argument to legitimize their attack on
the civil rights agenda and initial appeals for
heavier handed law enforcement.
The strategy relied on two mutually reinforcing
elements: (1) depoliticization and criminalization
of racial struggle and (2) racialization of crime.
According to this argument, the civil disobedience
strategy of movement activists was the major
culprit in the crime increase.79 This claim was
empirically unfounded; though arrests related to
collective action protests did increase during this
time, it was not of a scale to make the aggregate
crime rate increase.80 Some academics believe
collective action actually had the opposite
effect.81 But in their advocacy, proponents of the
new doctrine championed the view that civil rights
demonstrations amounted to violence and created
a climate of lawlessness. Senator Richard Russell
denounced politicians for condoning them:
The seeds that have been sown by high officials
encouraging violations of local law are now producing the crop of violence . . . . If our highest
officials continue to applaud sit-ins, lie-ins,
stand-ins, and all other violations of property
rights, it can lead us into a state of anarchy.82
79. Goldwater had used this rationale early on:
But no one can in deep conscience advocate lawlessness in seeking redress of a grievance! When men will
seek political advantage by turning their eyes away
from riots and violence, we can well understand
why lawlessness grows even while we pass more laws.
(Goldwater, “Peace Through Strength”, 746)
80. Because the Uniform Crime Report statistics do not separate
out those behaviors related to mass demonstrations and riots, it is
difficult to know exactly what proportion of the crime rate was
attributable to the racial disorders. The government’s investigation
of riots and major civil disorders counted 59,257 related arrests
during the three year period of 1965– 1968 (U.S. Senate Permanent
Subcommittee on Investigations of the Committee on Government
Operations, Staff Study of Major Riots and Civil Disorders—1965
Through July 31, 1968. 90th Cong., 2nd sess., Oct. 1968). The President’s Commission on the Causes and Prevention of Violence credited group political activity as a major cause in the increase in crime.
According to the Commission, there were 71,000 arrests related to
demonstrations, protests, and riots between 1963 and 1968; to
compare, homicides generated 39,000 arrests during the same
time span (U.S. National Commission on the Causes and Prevention of Violence, To Establish Justice, To Insure Domestic Tranquility:
Final Report [Washington, DC: Government Printing Office, 1969]).
81. Frederic Solomon, “Civil Rights Activity and Reduction in
Crime among Negroes,” in Problems and Prospects of the Negro Movement, ed. Raymond J. Murphy and Howard Elinson (Belmont, CA:
Wadsworth Publishing Company, 1966).
82. Sen. Richard B. Russell in “Crisis in Race Relations—How
Will It Be Met? Interviews with Congressmen around the Nation,” 27.
248
VESLA M. WEAVER
The argument depended on collapsing the distinction
between political protest, which relied on a strategy of
nonviolence, with riots; Herman Talmadge (D–GA)
concluded that “mob violence such as we have witnessed
is a direct outgrowth of the philosophy that people can
violate any law they deem to be unjust or immoral or
with which they don’t agree.”83 Senator Russell Long
gave a speech explaining where the riots started—
“When Martin Luther King was in the Birmingham,
Alabama, jail and wrote a letter . . . to the preachers
which said civil disobedience is OK if done in the
name of civil rights.”84 J. Edgar Hoover also denounced
the nonviolent strategy of civil rights activists:
“Civil disobedience,” a seditious slogan of gross
irresponsibility, has captured the imagination of
citizens . . . . I am greatly concerned that certain
racial leaders are doing the civil rights movement a great disservice by suggesting that citizens need only obey the laws with which they
agree. Such an attitude breeds disrespect for
the law and even civil disorder and rioting.85
One of the most articulate proponents of this idea
was the former Supreme Court Justice Charles E.
Whittaker, who, since retiring from the Court, traveled across the country giving speeches and often
testified before Congress mainly on this point.86
Therefore, even though most protest was still nonviolent, by arguing that civil disobedience violated
the rule of law and led to more serious lawlessness,
it was violent, and thus, criminal. Thus, the counterproject contended that racial struggle, both peaceful
and violent, was inherently criminal. But, for racial
disorder to successfully be attached to criminality,
a second supporting idea was required.
83. Sen. Herman E. Talmadge, in ibid., 29.
84. Marvin Watson to President Johnson. 2 Aug. 1967 (6:20
PM), LBJ Library, HU2, 7/30/67– 8/8/67.
85. J. Edgar Hoover, (1965), 72.
86. In discussing the “current rash and rapid spread, of
planned, mass violation of our laws,” Whittaker blamed “Negro
leaders” for telling the “Negro masses” that,
[T]hey should go forth and ‘force’ the whites to grant
them their ‘rights’, and, in doing so they should
violate the laws that stand in their way because they
are ‘bad’ laws—which is plainly to tell them to take
the laws into their own hands and to judge for themselves, as they proceed, which of them they will obey
and which of them they will violate. In that angry
mood, and with that advice, they do go forth . . . as
if looking for trouble—and frequently so block the
walks, streets, parks, and highways as to preclude
their intended public uses . . . and, when those violations of our laws are resisted, even by the police, open
riots usually break out and result in commission by
them of crimes of moral turpitude. (Charles E. Whittaker, “Planned, Mass Violations of our Laws: The
Causes, and the Effects Upon Public Order”
[address 14 Feb. 1967], Vital Speeches of the Day 33
[1967]: 324).
Just as important as what conservative strategists
associated with racial discord, is what they disassociated from it. In order to discredit the idea that
violent racial struggle was an outcome of social conditions, conservative strategists became preoccupied with showing that racial discord was neither
motivated by police brutality nor did its origins
emanate from racial discrimination; rather, it was
criminality, pure and simple. For example, though
looting was a form of protest, usually targeting discriminatory businesses, looters were depicted as
criminals who pursued their loot in a “holiday
spirit.” Even while the National Commission on
Civil Disorders reported findings that most racial
disorders were instigated by confrontations
between the local community and police and/or
alleged excessive police force, many legislators
and public commentators construed them as
being perpetrated by professional agitators, Communist Party affiliates, and self-serving looters,
hoodlums, and criminals. According to one “top
authority,” Los Angeles Police Chief William
Parker, the “police brutality” allegations were a “terribly vicious canard which is used to conceal Negro
criminality . . . to try to find someone else to blame
for their crimes.”87 In his statement before the
Crime Commission, J. Edgar Hoover, the highest
ranked U.S. law enforcement official, dismissed
police brutality as part of a communist campaign,
stating that the “net effect of the charge of ‘police
brutality’ is to provoke and encourage mob action
and violence by developing contempt for constituted authority.”88 Indeed, Hoover’s report on the
1964 riots concluded that, because civil rights
agencies had not received formal complaints prior
to the riots, they could not have been sparked by
racial discrimination or police misconduct and
went on to applaud the police for performing
very well.89
They also refuted arguments that riots were outbreaks against impoverished conditions. If poverty
were the cause, they argued, then why were the
cities that were the best for blacks being victimized?
This sentiment was echoed frequently. As Senator
Robert Byrd (D– WV) argued:
So, Mr. President, . . . [p]overty neither provides a license for laziness nor for lawlessness.
We can take the people out of the slums, but
we cannot take the slums out of the people.
Wherever some people go, the ratholes will
follow . . . . All the housing and all the welfare
87. “Race Friction—Now a Crime Problem?,” 23.
88. Federal Bureau of Investigation, “Statement of J. Edgar
Hoover Before National Commission on the Causes and Prevention
of Violence, September 18, 1968,” 6.
89. Federal Bureau of Investigation, Prevention and Control of
Mobs and Riots (Washington, DC: n.p., 1967).
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 249
programs conceivable, will not stop the riots or
do away with the slums.90
Nor was racial discrimination a factor. After Watts,
California Governor Edmund G. Brown declared:
“The riot had no connection with whether a Negro
has the right to vote or a legal right to any job for
which he can qualify. We have established these
things in California.”91 The McCone Commission,
charged with analyzing the causes of the Watts riot,
blamed the rioting on blacks, calling it a “formless,
quite senseless” explosion and denied any role of
the police in the agitation.92 According to one
Evening Star editorial, “A man who makes a firebomb
and throws it through a shop window is not doing it
because his grandfather was a slave . . . . Those who
openly advocate wanton acts should be severely punished.”93 Others argued that police actions were legitimate responses to the behavior of black residents; for
instance, Senator Byrd said that “If they [blacks]
conduct themselves in an orderly way, they will not
have to worry about police brutality.”94 Surveys of
public opinion demonstrate that this campaign to disassociate police actions from racial unrest was very
successful: a mere 13 percent of the public believed
“police brutality” was a cause of the riots.95
A third image in the frontlash strategists’ toolkit was
focused on enlisting popular rights-language to their
cause. Politicians counterbalanced civil rights claims
with criminal justice. The focus on civil rights had
gone too far, the argument went, and was permitting
the rights of society from protection against criminals
and agitators to be sacrificed. For example, in a letter
to President Johnson, Representative L. Mendel
Rivers (D –SC) noted: “The Nation cries out for leadership; fear permeates the air; insurrections runs
rampant; law and order is on the verge of total collapse. . . . Now is the time to speak of obligations—not
rights.” 96 Pitting the priorities of crime and civil
rights against each other, another advocate, Georgia
Governor Lester Maddox, wired the president in
1967:
I advised you on numerous occasions starting
in early 1964 that national legislation . . .
would bring waves of violence, burning,
looting, injury and violent death . . . Please do
90. “Poverty: Phony Excuse for Riots? ‘Yes,’ Says a Key Senator,”
U.S. News and World Report, 31 Jul. 1967, 14.
91. “Race Friction—Now a Crime Problem?,” 22.
92. Joe R. Feagin and Harlan Hahn, Ghetto Revolts: The Politics of
Violence in American Cities (New York: Macmillan Publishing Co.,
1973).
93. Repr. in Congressional Record, 3 Aug. 1967, H9932.
94. “Poverty: Phony Excuse for Riots?,” 14.
95. “81% In a Poll See Law Breakdown,” in Crime and Justice,
255.
96. Telegram to the President from L Mendel Rivers, Member
of Congress, 25 Jul. 1967, LBJ Library, HU 2 7/1/67–7/28/67;
emphasis added.
not urge additional legislation that strikes
down the right to private property, free enterprise . . . . Please offer no more programs that
are nothing more than attempted bribes to
buy law and order and good behavior.97
To symbolize the priority of crime over civil rights,
Representative Craig Hosmer (R – CA), introduced
a proposed constitutional amendment: “The right
of society in general and individual persons in particular to be protected from crimes against person
and property shall be paramount to other rights.”98
In 1968, Richard Nixon would proclaim that the
“first civil right” was the “right to be free from
violence.”99
Politicians linked civil rights and crime through
implicit appeals. Although they avoided explicitly
racist exhortations about racial integration breeding
crime, they associated the problem of crime with
racial change, radicalism, and civil rights demonstrations. Republican leader of the House Gerald
Ford gave an emphatic statement to the press:
The War at home—the war against crime—is
being lost . . . . The homes and the streets of
America are no longer safe for our people.
This is a frightful situation . . . . The Republicans in Congress demand that this Administration take the action required to protect our
people in their homes, on the streets, at their
jobs . . . . When a Rap Brown and a Stokely Carmichael are allowed to run loose, to threaten
law-abiding Americans with injury and death,
it’s time to slam the door on them and any
like them—and slam it hard!100
Seeking issue dominance, conservative entrepreneurs presented a set of ideas around the crime
problem favorable to their goals: there was a growing
tide of lawlessness; civil disobedience led to violent
riots; riots were not a legitimate grievance but were criminal acts; the right of society to be free from criminals was
above rights of protesters (who were criminal); therefore, we need more punishment. This issue framing
was sanitized from collapsed logics of segregation and
superiority, while putting forward a coherent statement
of why the old root causes position was part of the new
problem.
So, like its antecedent in civil rights debates, crime
was linked to civil rights. But this time argument not
to oppose civil rights but to proactively call for law
97. Telegram to the President from Lester Maddox, Governor
of Georgia. 12 Apr. 1968, LBJ Library, JL 3.
98. Right to Protection From Crime Should be Paramount, 89th Cong.,
1st sess., Congressional Record 111, pt. 16 24 Aug. 1965, 21646.
99. Richard M. Nixon, “Toward Freedom from Fear,” speech
read into 90th Cong., 2nd sess., Congressional Record 114, pt. 10,
13 May 1968, 12938.
100. Qtd. in James L. Sundquist, Dynamics of the Party System:
Alignment and Realignment of Political Parties in the United States
(Washington, DC: Brookings Institution Press, 1983), 385.
250
VESLA M. WEAVER
enforcement. From 1965 to 1969, nearly 100 pieces of
legislation made participating in a riot a federal
offense with stiff penalties.101 The 1968 Omnibus
Crime Control and Safe Streets Act made it a
felony to cross state lines with the intent of inciting
or taking part in a riot; another provision banned
people convicted of a riot-related felony from
federal employment and from receiving federal
money.102 The 1967 District of Columbia Crime Bill
also contained an anti-riot provision that gave penalties of up to five years imprisonment and fines of up
to $10,000 for engaging in, inciting, or encouraging
others to participate in a riot.103 In addition to
numerous crime-related bills, riot-related penalties
and provisions also surfaced as riders to civil rights
bills, including the 1966 and 1968 Civil Rights Acts.
For example, the liberal open housing law of 1968
contained a tacked on antiriot bill (sponsored by
Representatives Strom Thurmond [R – SC] and
Frank J. Lausche [D – OH]), or the “H. Rap Brown
bill,” as it was termed after the Black Power
leader.104 Congress included antiriot provisions in
several other bills unrelated to crime that banned
students and federal employees convicted of riot
offenses from receiving federal money. Even a
“routine postal salary bill” contained provisions
banning from federal employment any person
convicted of an offense related to a riot or
civil disorder.105 Similarly, at least twenty states
revised their criminal codes to include riot
offenses, with most carrying prison sentences.106
In 1969 alone, state legislatures proposed more than
100 separate riot-related bills.107
The Liberal Dilemma
The conservative countermovement thus presented a
coherent problem definition based on depoliticizing
and criminalizing the riots and racializing crime.
This set of images created political traps for liberals.
As they had in civil rights debates, liberal voices
101. Murakawa, “Electing to Punish.”
102. See section on “Riots and Federal Workers” in CQ Almanac
1968, 641.
103. U.S. House Committee on the District of Columbia, AntiRiots Hearing before Subcommittee No. 4, 90th Cong., 1st sess., 1967.
104. The resulting bill was much more expansive than the one
proposed by Johnson and the Kerner Commission. The anti-riot
bill ultimately passed because the fair housing bill rested on a
fragile coalition of votes.
105. CQ Almanac 1968, 641. The provision was later deleted
when the sponsor argued that it was a “product of hysteria.”
106. Feagin and Hahn, Ghetto Revolts.
107. Richard Harris, Justice: The Crisis of Law, Order, and Freedom
in America (New York: E.P. Dutton, 1970). In one of the more
extreme examples, the Virginia legislature debated a bill that
would have “permitted authorities to form a posse to deal with
rioters when authorities merely expected a riot” (Virginia House
Bill No. 365, 18.1-254.10 [1968]). See also M. Cherif Bassiouni
The Law of Dissent and Riots (Springfield, IL: Charles C. Thomas,
1971).
recognized the strategy of linking civil rights
agendas to the problem of crime and tried to
expose its racial character. The Washington Post headline characterized the allegation of liberals and black
leaders: “‘Crime in Streets’ is Called Slogan to Curb
Negroes.”108 Attorney General Nicholas Katzenbach
was wary of the public hysteria that was being
created around increasing crime statistics and their
implied connection to the violent destruction being
depicted on televisions throughout the country:
The [Civil Rights] Act, they say, has encouraged
disrespect for the law in other parts of the
country. Thus, a link is drawn between demonstrations for civil rights and crime in the streets.
Riots in Harlem, or Rochester, or Philadelphia,
are tied to rising crime rates.109
Presidential candidate Hubert Humphrey similarly
argued:
Segregationists and some white conservatives
use the riots as an excuse not to take the
action for racial justice that they do not
support anyway. They are very much afraid we
will “reward the rioters,” as they say . . . . Ever
since Watts, and particularly since Detroit and
Newark, the discussion of equal rights has
been distorted and sometimes even sidetracked by the very different issues of riots
and civil disorders, of “crime in the streets’
and ‘law and order.” . . . It is dangerous nonsense to believe that social progress and a
respect for law are somehow in opposition to
each other.110
However, because the new conservative doctrine had
worked vociferously to conflate crime and civil disobedience, with its obvious extensions to civil rights,
liberals were forced to walk a tightrope. The liberal
position was wedged in a trap—either refute the conservative paradigm, arguing that riots were legitimate
expressions of deplorable inner-city conditions, which
risked the appearance of sanctioning violence and
doing permanent damage to the civil rights agenda,
or seek to avoid blame for the riots by presenting a
strong case for their distinction from civil rights
protest. They pursued the latter strategy.
Liberals tried to project the message that riots were
not part of a legitimate articulation of racial discrimination, for fear that the violent nature would hurt
their civil rights agenda and create a backlash
among previously supportive groups of whites. Black
leaders submitted a collective statement printed in
the New York Times in 1964 distinguishing between
108. Jean M. White, “‘Crime in Streets’ Is Called Slogan To
Curb Negroes,” Washington Post, 23 Jan. 1968.
109. Nicholas deB. Katzenbach, “The Civil Rights Act of
1964,”Vital Speeches of the Day 31 (1964): 27.
110. Hubert H. Humphrey, Beyond Civil Rights: A New Day of
Equality (New York: Random House, 1968), 133.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 251
rioting and “legitimate protest.”111 In 1966, another
group of nationally prominent black leaders, including A. Philip Randolph, Dorothy Height, Bayard
Rustin, Roy Wilkins, and Whitney Young, Jr. published
a statement in the New York Times repudiating violence
while endorsing criticism of poor conditions in the
ghettos.112 LeRoy Collins, formerly the head of the
Community Relations Service of the DOJ, also tried
to distinguish riots and protest: “We don’t want to
associate civil rights with this kind of lawlessness.”113
And Attorney General Nicholas Katzenbach: “To call
them [riots] ‘racial’ problems is not a solution but a
slogan. What is worse, it is wrong.”114 President
Johnson put the point more bluntly: “A rioter with a
Molotov cocktail is not fighting for civil rights any
more than a Klansman with a sheet on his back and
a mask on his face.”115 By making these claims, liberals
implicitly argued that the urban violence was not part
of a larger social ill and that riot participants were
common criminals, confirming the conservative claim.
The conservatives had offered an uncompromising
position on crime and lawlessness. In contrast,
the liberal alternative was to mix the call for law
enforcement with more sobering pleas for social
uplift. At a meeting called “Order and Justice” in September 1968, one participant characterized the conundrum: “We can’t compete with Nixon and
Wallace on law and order. But we’re going too far
on the justice emphasis. Let’s emphasize order and
justice.”116 Ultimately, this emerged as the liberal
alternative in an attempt to counter the popular conservative slogan with their own moniker—“law and
order with justice,” an ambiguous position that tried
to serve two masters. Liberal leaders tread this thin
distinction, arguing that while we must act against
violence and “put down” riots, there must also be consideration for continued progressive measures toward
equality and programs to lessen unemployment and
poverty. This message was not easily accessible to the
public and stood in stark contrast to the seamless
conservative message. The incoherent position left
liberals precariously straddled across two sides that
were increasingly polarizing. Conservative Republicans and southern Democrats attacked this alternative with the appeal that liberal politicians were
permitting criminality to flourish under the guise
of poverty and disenfranchisement, camouflaging
ordinary crime as dissent, and “pussyfooting” on the
111. “Texts of Statements by Negro Leaders,” New York Times,
30 Jul. 1964, 12.
112. Repr. in Crisis and Commitment, 89th Cong., 2nd sess., Congressional Record 112, pt. 20, 17 Oct. 1966, 27189 –90.
113. Qtd. in “Race Friction—Now a Crime Problem?,” 24.
114. Katzenbach, “Civil Rights Act of 1964,” 27.
115. Lyndon B. Johnson quoted in “Shift in the wind in
Washington [violent defiance of law and order gone too far],”
U.S. News & World Report, 6 Sept. 1965, 28.
116. Transcript, Lawrence F. O’Brien Oral History Interview
26, 26 Aug. 1987, by Michael L. Gillette, Internet copy, LBJ Library.
issue of crime and riots. Nixon exposed this weakness
in his “Toward Freedom from Fear” speech:
There is another attitude that must be discarded if we are to wage an effective national
war against this enemy within. That attitude is
the socially suicidal tendency—on the part of
many public men—to excuse crime and sympathize with criminal because of past grievances the criminal may have against society.117
Republicans launched a harsh criticism of the Democrats in their 1968 pamphlet entitled “Crime and
Delinquency—A Republican Response.” Among the
many criticisms, one of their strongest was against
the Great Society approach: “The Johnson-Humphrey
Administration has proposed its standard ‘great
society’ answer to the problem—Federal money and
Federal controls . . . but too many factors indicate
that improved economic and social conditions alone
will not reduce crime.”118
Had the crime problem not been accompanied by
riots and racial unrest, a root causes approach might
have been favored, as the direction of the 1950s
suggested, and the crime-race argument that racial
conservatives employed would have been easily
exposed as a racial ruse. Wracked by riots, the
terrain had become hostile to the liberal root causes
position—or, as Hoover maintained, society was
“beginning to gag on the steady sociological diet of
excusing the conduct of teenage hoodlums because
‘society has failed them’.”119 The Democrats were
split between holding fast to this position and
moving rightward, while conservatives were unified.
As civil rights was increasingly tied to criminality, the
costs of defending civil rights and claiming poverty
and unemployment as causes of riots was becoming
clearly felt. Liberals engaged in strategic agreement,
endorsing the conservative issue definition and
policy program (see Figure 6).
Ultimately, liberals betrayed their early solidaristic
calls for social reform and warring on poverty and,
by the end of the 1960s, they began downplaying
underlying causes, arguing instead for more gun
control. Not in small part due to several defeats—
Democrats had lost 12 million voters between 1964
and 1968—the early emphasis on poverty and social
conditions faded. By 1968, Democrats had aligned
themselves with the “law and order” program and
were trying desperately to mimic the Republicans.
The Democratic platforms during this time period
demonstrate how increasingly indistinguishable their
position was from the Republicans. The Democratic
117. Nixon, “Toward Freedom from Fear,” 12936.
118. Task Force on Crime and Delinquency [prepared under
the direction of the Republican National Committee], Crime and
Delinquency—A Republican Response (Washington, DC: 1968), 4–24.
119. “People of the Week—And a Warning from J. Edgar
Hoover,” U.S. News & World Report, 13 Sept. 1965, 20.
252
VESLA M. WEAVER
Fig. 6. Democratic Party Agenda on Civil Rights and Crime.
Source: Author’s compilation. Text of the party platforms was from the Public Papers of the Presidents, available in digital format: John Woolley
and Gerhard Peters. The American Presidency Project [online] (Santa Barbara, CA: University of California [hosted], Gerhard Peters [database]). Available at http://www.presidency.ucsb.edu/ (last accessed 6 Aug. 2007).
platform in 1956 contained a mere three sentences on
law enforcement; the 1960 platform included only
one additional sentence (dealing specifically with
organized crime). By the next election, the issue
was beginning to rise in importance: “We cannot
and will not tolerate lawlessness. We can and will
seek to eliminate its economic and social causes.”
While crime is no longer ignored, the platform also
firmly set out the idea that through eradicating
poverty, crime would likewise diminish. The only
mention of stricter punishments was focused on the
unlawful behavior of employers who discriminate.
The 1964 platform highlighted two pieces of legislation—the Juvenile Delinquency and Youth Offenses
Control Act of 1961 and the Criminal Justice Act of
1964—that were aimed at preventing youth crime
and making sure poor people were adequately represented in court, respectively. By 1968, the Democratic Party was clearly beginning to recognize the
costs of being seen as supporting lawbreakers and
the root causes commitment had faded. The
program included a much fortified discussion on the
problem of crime and strong critique of dissenters
who use violence and pledged a “vigorous and sustained campaign against lawlessness in all its forms.”
Meanwhile, Robert Kennedy campaigned for the
Indiana primary by voicing his opposition to crime
and Humphrey sought the Minnesota primary on law
and order.
By the 1970s, the root causes argument had been
eliminated in favor of echoing and reinforcing the
connection between crime and civil rights, rendering
Democrats virtually indistinguishable from their conservative counterparts. For one example, Senator Ted
Kennedy (D – MA) echoed the conservative line:
“Along with the civil right to vote, go to school, and
have a job is the right not to be mugged, robbed, or
assaulted.”120 Polls suggest that, by 1970, people
viewed the two political parties as roughly equivalent
on crime control. In response to one Gallop survey
question on the issue—“which party—the Republican
or the Democratic—do you think can do the better
job of dealing with crime and lawlessness?”—the
majority of respondents saw no difference or had no
opinion (44 and 11 percent, respectively), while
only 4 percent more respondents believed the
120. Qtd. in Cronin, Cronin, and Milakovich, U.S. v. Crime in the
Streets, 177.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 253
Republican Party would do a better job on crime
than the Democratic Party (24 and 20 percent,
respectively).121
When policy images are accepted and one side
develops a monopoly on the understanding of an
issue, they constrain the policy choices available. In
the next section, I offer a detailed account of the
way the problem definition and process of strategic
pursuit manifested itself in crime laws. Not only
did the liberal approach begin to come apart at
the seams, administration proposals would again
and again collide into a conservative-controlled committee. Constrained by public opinion, many liberals
in Congress admitted to voting for some legislation
to prevent other, more punitive legislation from
passing.
Establishing a Monopoly: The Ascendance of Law
and Order
After the “long, hot summer” of 1967, where riots
occurred in 120 cities, it seemed the “Great Society”
had given way to lawlessness. By the end of that
summer, there had been at least 150 violent racial disorders spread across 128 cities, resulting in 118 dead,
4,000 injured, about 10,000 arrests, and millions of
dollars of property damage.122 The National Guard
had been mobilized twenty-three times and on one
occasion U.S. Army troops were deployed. Many perceived the nation as gripped in a state of rebellion
(Figure 7).
At the same time, the public believed they were
beleaguered by crime. Crime and lawlessness was
the top issue to the public in 1968 for the first time
since the 1930s, according to the Gallup poll, and
about half of the public believed crime was increasing
(compared to only 3 percent who said decreasing).123
The next year, 88 percent of people felt that the
problem of “crime in the streets” should have a
“great deal of attention paid to it (Figure 7).”124
By the time the National Advisory Commission on
Civil Disorders (commonly known as the Kerner
Commission) issued its report in 1968, the “end
poverty and discrimination” appeal fell on deaf ears.
Not only was it no longer an approach to crime and
an excuse for permissiveness, some in Congress
argued that further aid to ghettoes would capitulate
to the riots; many assistance programs were cut
including the rent supplement program, or dwindled
down like the Model Cities program. The Kerner
Report warned that without social reform, the riots
121. The Gallup Poll no. 797, Jan. 1970.
122. “Era of Growing Strife in U.S.,”U.S. News & World Report,
25 Sept. 1967, 42.
123. Louis Harris and Associates, The Public Looks at Crime and
Corrections: Report of a Survey Conducted for the Joint Commission on Correctional Manpower and Training in November, 1967 (Washington, DC:
Joint Commission on Correctional Manpower and Training, 1968).
124. Harris Study no. 1970.
Fig. 7. Law and Order postage stamp.
Note: Special stamp issued in 1968 (unveiled at the White House on
May 17, 1968).
would only get uglier and incorporate mainstream
blacks.125 One of its authors, New York City Mayor
John Lindsay warned: “The only certain change will
be that next summer, all of it will be worse—more festering, more inflamed, and infinitely more perilous.”126 The Kerner Report was heavily criticized for
blaming mobs and violence on white racism. Conservatives in the Senate Committee on Government Operations introduced a resolution to conduct their own
investigation of “crime and lawlessness” sponsored by
John McClellan:
Although the committee recognizes and commends the action taken by the President in
appointing a Special Advisory Commission on
Civil Disorders, it is the consensus of the Rules
Committee members that the spate of riots
and civil disturbances which have occurred
throughout the Nation during the last few
weeks places a corollary responsibility on the
Senate to conduct its own investigation.127
There were still those who argued that an attack on
poverty was the means through which crime should
be thwarted, but they were now in the minority.
John Sherman Cooper (R – KY) proposed an amendment (which was ultimately rejected) to the Senate
resolution to incorporate a “study and investigate
the extent to which economic or social causes have
bearing on such disorders, the community attitudes
125. United States, National Advisory Commission on Civil Disorders, Report of the National Advisory Commission on Civil Disorders
(Washington, DC: Government Printing Office, 1968).
126. John V. Lindsay, “Violence in the Cities,” Vital Speeches of the
Day 33 (1967): 676.
127. U.S. Senate, Authorizing the Committee on Government Operations to Investigate Crime and Lawlessness within the United States:
Report together with Individual Views to Accompany S. Res. 150, 90th
Cong., 1st sess., 1967, rept. 470, 2.
254
VESLA M. WEAVER
toward such causes,” and urging the other senators to
“consider also their grievances, their conditions, and
that the Congress intends to move urgently to correct
them.”128 Southerners held key positions on both the
District of Columbia Crime Committee and the Judiciary Committee and conservatives dominated the
Senate Subcommittee on Criminal Procedure,
which was chaired by John McClellan. Ramsey Clark
noted that McClellan was “so terribly strategically
located”:
He was chairman of the Subcommittee in Judiciary, the second ranking man on the Judiciary,
had the complete support of the chairman,
Senator Eastland. He was also the chairman
of our Appropriations Subcommittee so that
literally on occasion we would adjourn a subcommittee meeting on the authorization . . .
and Senator McClellan wouldn’t even get up
out of his seat.129
Realizing that the riots were costing him votes,
several of Johnson’s advisors pushed the president
to “start acting less like a social worker and more
like a cop.”130 However, they also saw the potentially
disastrous consequences of promising the public
more than it could deliver on crime and riots: “it is
very important not to identify crime as a Presidential
problem but as a local problem he is helping Governors and Mayors to solve . . . . So let’s not do anything
to raise crime’s rating as a national problem.”131
Turning his back on recommendations from Warren
Christopher and Ramsey Clark, Johnson instructed
Joe Califano to include a riot bill in his upcoming
crime message.132 In the message, he said that the
law would “give the federal government the power
to act against those who might move around the
128. Ibid., 3– 4.
129. Transcript, Ramsey Clark Oral History Interview V, 3 June
1969, by Harri Baker, Internet copy, LBJ Library.
130. There was considerable contestation between the federal
agencies as to the approach of the administration:
HEW feels that juvenile delinquency, social services,
rehabilitation, etc. should be heavily emphasized.
We feel the President must place a much greater
emphasis on crime and law enforcement if he is to
strike the right note with Congress and the public.
This is not necessarily a programmatic difference,
but rather primarily a difference in how the President
talks about the problem.
(Memorandum for the Honorable Bill D. Moyers, Special
Assistant to the President, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, LBJ Library. SP 2–3/1965,
JL, Law Enforcement & Administration of Justice 3/8/65)
131. Memorandum to Larry Levinson from Fred Panzer.
Subject: Crime Message Booklet, 28 Feb. 1968, LBJ Library,
Office Files of Fred Panzer: Crime—1968.
132. Christopher and Clark noted that “Enactment of a
Federal act runs the risk of appearing to do more than we can
really accomplish.” (Memorandum for the President from Joe Califano, 29 Jan. 1968 [10:00 p.m.], LBJ Library, LE/JL).
country, inciting and joining in the terror riots.”133
Realizing that he could no longer politically afford
to decouple crime and civil rights, Johnson also
changed his line dramatically in his 1968 State of
the Union speech—“The American people . . .
[h]ave had enough of rising crime and lawlessness”—and the loudest applause from the audience
came in parts that attacked crime.134 In his message
to Congress requesting action on the Safe Streets
bill, he had abandoned the poverty approach for
more “immediate solutions to the rising crime rate
that will help us maintain order.”135
The negotiation and passage of two major bills
exemplifies the escalating punitiveness. The first
“immediate solution” was the Omnibus District of
Columbia Crime bill. Efforts to get a bill passed on
crime in the District began in 1958. There had been
excessive attention to crime in the District for years;
described as a “sick city,” it dominated news accounts
of crime: “‘latchkey’ kids who know no family restraint
roam the midnight streets, yoking (mugging), beating,
and gang-raping.”136 Ramsey Clark and others believed
this attention to have motivations above the crime rate,
saying that “people always liked to focus on the nation’s
capital as a crime center” even though “the statistics
never supported it” because “it was really a continuation
of the old southern belief that the blacks were incapable of self-government.”137
Passed in 1967, it included warrantless arrests for
misdemeanors, investigative detention with no
charges or Mirandizing (allowing police interrogation of people not charged with a crime), imposed
strict mandatory penalties, and prison sentences for
inciting to riot. The conservative-dominated District
of Columbia crime committees in the House and
Senate deleted provisions related to gun control,
drug treatment, and rehabilitation, and revised the
penal code to include mandatory sentences for
certain offenses. This bill attempted to undercut the
Supreme Court’s Mallory decision by ensuring the
admissibility of confessions made in a three-hour
investigative detention (the Mallory rule excluded
confessions obtained by delaying arraignment). President Johnson vetoed the bill with reservations over
detention and the mandatory minimums.
In February 1967, the commission established by
Johnson in the 1965 LEAA to study the priorities in
criminal justice reform issued its report, The Challenge
133. U.S. House, The Challenge of Crime to Our Society: Message
from the President of the United States, 90th Cong., 2nd sess., 1968,
Doc. 250, 11.
134. Lyndon B. Johnson, “Annual Message to the Congress on
the State of the Union,” 17 Jan. 1968.
135. Lyndon B. Johnson, “Special Message to the Congress on
Crime and Law Enforcement,” 7 Feb. 1968.
136. Fletcher Knebel, “Washington, DC: Portrait of a Sick City,”
Look, 4 Jun. 1963, 15.
137. Transcript, Ramsey Clark Oral History Interview V, 3 Jun.
1969, by Harri Baker, Internet copy, LBJ Library.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 255
of Crime in a Free Society. The commission found “far
more crime than ever is reported,” and advocated
federal aid to local police of “several hundred
million dollars annually.” Based on this report and
its 200 recommendations, Johnson requested from
Congress the “most comprehensive set of anti-crime
proposals ever sent by a President to Congress,”
which implemented the recommendations of the
report and included a mix of expansive federal gun
control legislation, provisions for aid to state innovation in criminal justice, and prisoner rehabilitation.
Aides had warned against the move to further “federalize” the crime problem; the Director of Johnson’s
Crime Commission, James Vorenberg, sent a
message to Joe Califano where he strongly admonished restraint: “the ‘safe streets’ approach runs the
risk of the President and the federal government
appearing to take very direct responsibility for eliminating or reducing crime on the streets.”138
Although President Johnson’s proposed legislation
left the House Judiciary Committee with little modification, once on the Floor, the bill was dramatically
rewritten by a Republican and Southern Democratic
coalition through a series of amendments debated
over the course of three days. The Senate did the
House one better, foisting even more provisions
that were anathema to the president’s 22-point
program and even attempting to rename the bill.
These revisions gave extra funds with the “highest
priority” of funds earmarked for riots and civil disorders, reassigned control of funds from the Attorney
General to state governors, and expanded the power
of electronic surveillance, overriding Johnson’s
strong belief that wiretapping should only be used
in cases related to national security. The two bills
were squared in the conference committee, with conservative John McClellan, the Senate sponsor, ultimately triumphing.
The conservatives who controlled crime-related
committees influenced nearly every facet of the Safe
Streets Act in ways that benefited their aims. One journalist and expert on crime legislation during the
1960s noted that while the conservative coalition
usually “exercises negative control, and merely votes
down bills, or parts of bills, that it dislikes,” the
crime issue provided “an opportunity to exercise positive control, both in the Senate and in the House of
Representatives.”139 The conservative coalition made
sure that the crime legislation would be immune
from civil rights challenge and wouldn’t get into the
hands of those sympathetic to civil rights, teaming
138. Memorandum from Joseph A. Califano, Jr., Special Assistant to the President, from James Vorenberg, Executive Director,
President’s Commission on Law Enforcement and Administration
of Justice, 2 Dec. 1966, LBJ Library, 1966– 1967 Task Force on
Crime—I.
139. Richard Harris, The Fear of Crime (New York: Frederick A.
Praeger, Publishers, 1968), 55.
up on several key roll call votes.140 First, they
amended the law to make sure that disbursement of
funds was not based on compliance with the condition of the Civil Rights Act in Title VI, which gave
the federal government power to withhold funds
from agencies that were racially discriminatory.141
They also objected to the grants being administered
by the attorney general for fear that he would
enforce racial guidelines on local governments. In
the Senate hearings on the bill, McClellan grilled
Ramsey Clark over his potential authority to require
recipient agencies to be racially inclusive. When
Clark answered that the Civil Rights Act would
indeed apply and that discriminatory law enforcement agencies would be in violation, Senator Thurmond interrupted:
I gave you the illustration that now HEW is
trying to get schools to haul children from
one place to another specifically to bring up
the racial balance in schools. I am asking you
here under this bill, coupled with Title VI of
the civil rights act, would your director have
the right to withhold funds if he wanted a
racial balance brought into the personnel of
the police department . . . ?142
Title I of the resulting act created a three-person
LEAA to administer the grants and stipulated that
the LEAA could not require that grant recipients
had a racially balanced police force. This dictum
was not merely symbolic; some states including
Alabama and Mississippi still prohibited blacks from
being employed as state police.143 Second, they
changed the federally administered local grants into
state block grants, in one of the most controversial
and hotly debated provisions of the bill. The administration’s bill had originally designed the grants to go
directly to cities and local agencies with populations
over 50,000 but House Republicans Everett Dirksen
(R – IL) and Gerald Ford (R– MI) proposed to
change the structure to block grants to be given
directly to states. It was understood that if the
money went to cities, agencies controlled by liberal
Democrats and blacks in city government would
administer it. Alternatively, if the money was channeled through at the state level, governors would
have discretion over how the money was used and
the majority of governors were ideologically conservative.144 Republicans and southern Democrats argued
140. CQ Almanac 1968.
141. CQ Almanac 1967.
142. U.S. Senate, Controlling Crime Through More Effective Law
Enforcement, Hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st sess.,
1967.
143. James Vorenberg, “The War on Crime: The First Five
Years,” The Atlantic Monthly, May 1972.
144. Indeed the National Conference of Governors lobbied
Congress for the block grants.
256
VESLA M. WEAVER
vociferously for the block grant amendment, upholding the tradition of attaching local control to federal
funding that often resulted in racially discriminatory
administration.145 Third, the act barred LEAA funds
from going to any agency that had ties to the antipoverty agency, the Office of Economic Opportunity
(OEO), an agency criticized for being complicit in
the riots.146 The above are powerful examples of
how the conservative coalition used a pet project—
crime—to advance the cornerstones of their prior
agenda on civil rights.
Attention to racial disorders figured prominently in
the protracted debates around the crime bill:
I do know that our courts and our national leadership has placed too much emphasis on minority rights without regard to the fact that
society collectively also has rights . . . . I am
charging the officials at Justice with ignoring
their responsibility to society and to the American people in order not to offend certain minority groups.147
McClellan and other anti-civil rights legislators had
not yet forgiven the Court for disturbing its Jim
Crow practices; in a direct example of frontlash,
they submitted several provisions to curb the Court.
Senator Ted Kennedy implored his colleagues in a
close vote on Title II, the provision that would
nullify the Court’s rulings expanding defendant
rights (Miranda, Mallory, and Wade):
For it is these keystones in our tradition of
ordered liberty which are threatened here
today. They are threatened because other
Americans want revenge against a Constitution
and a Court which denounced prejudice and
discrimination in large segments of American
life . . . . It is ironic that those who rail the
loudest about obedience to law as an unshakable absolute, those who inveigh against civil
disobedience in all its forms should be in the
forefront of an effort to violate the Constitution
and rob the Supreme Court of its power . . .148
While the debates on Safe Streets were going on,
the House passed a bill to punish people involved
in the riots. The bill was introduced by Representative
William Cramer (R – FL), who had originally tried to
pass riot penalties as an amendment to the failed
1966 Civil Rights Act. Emmanuel Celler (D– NY)
145. Katznelson, When Affirmative Action was White.
146. Title 1 of the Act “prohibited agencies administered or in
any part funded or contracted by the Office of Economic Opportunity from receiving funds under the Act.” CQ Almanac 1967, 858.
The original amendment was sponsored by Joe D. Waggonner Jr.,
Democrat from Louisiana.
147. Congressman Rivers quoted in Beth Lynch and Nancy E.
Goldberg, The Dollars and Sense of Justice: A Study of the Law Enforcement Assistance as it Relates to the Defense Function of the Criminal
Justice System (National Legal and Defender Association, 1973), 7.
148. Qtd. in Harris, Fear of Crime, 86– 87.
proposed to combine the antiriot legislation with
another bill that was to ensure protection of civil
rights workers, which had originally been part of
the Civil Rights Act of 1966.149 Despite it being an
uncontroversial provision in 1966, the bill ultimately
failed after arch-segregationist William Colmer (D–MS)
argued against the combination because he believed
the civil rights protection would make the riot punishment futile. Some in Congress objected to the racial
connotations of the antiriot bill; William F. Ryan
(D– NY) believed the legislation was motivated by
the same “white backlash” as that that killed the
Civil Rights Act of 1966; Frank Thompson Jr. (D–
NJ) argued that the bill was for sole purpose of stopping Stokely Carmichael, the black power leader.150
Despite the fact that the Commission on Civil Disorders found no evidence of a communist conspiracy,
the riots were connected to communism and outside
“professional” agitators and antipoverty workers. The
DOJ’s own video “Riotmakers: The Technology of
Social Demolition” explained the riots of the 1960s
as being coordinated by professional agitators, which
were dubbed “Leninoids.” In his statement for the
bill, Cramer presented the accounts of officials in
cities that had had riots, which alleged the influence
and participation of outside agitators; Colmer also
claimed the riots were an “organized conspiracy . . . .
backed by the Communists.”151 Many argued that the
riots were not disjointed events or spontaneous outbreaks to racial bias and police brutality but were
part of a conspiracy. In the hearings on anti-riot provisions, Representative Joel Broyhill (D–VA) argued:
These outbreaks of lawlessness . . . are conceived in the twisted minds of the hatemongers, a trained cadre of professional agitators who operate in open defiance of law,
order, and decency . . . . Moving among these
people, the dregs of our society, these insidious
enemies of our democratic form of government preach a cant of hate and contempt for
law and order . . . . They create fear wherever
they go, and feed with delight on this fear . . . .
They train other malcontents in the art of
destruction. . .these vultures of our society
carry on their nefarious work on funds provided by the very tax-payers whose lives and
property they threaten.152
The resulting legislation contained a sprawling definition of a riot; for instance, a riot could consist of
a public disturbance of a group of only three people,
which effectively meant that large peaceful demonstrations with a scuffle between three bystanders
149. This provision was originally included to address the
violent resistance to southern integration.
150. CQ Almanac 1967, 783.
151. Ibid.
152. U.S. House, Penalties for Inciting Riots: Report to Accompany
H.R. 421, 90th Cong., 1st sess., 1967, Rept. 472, 7.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 257
could constitute a riot. This legislation also provided for
the prosecution of civil rights leaders.153 When Congress passed it, many fully expected it to be overturned
by the Supreme Court as an unconstitutional abridgement of the First Amendment protections.
After being debated in committee and Congress for
two years and suffering the addition of twenty-five
amendments to the original administration proposal,
the Safe Streets bill was finally sent to the president to
sign on 6 June 1968.154 Even opponents of the bill,
such as John G. Dow (D– NY) felt compelled by
public anxiety over crime and riots to vote for the bill:
This bill, as now amended, I regret exceedingly,
and will only vote for it because of the widespread desire of all our people to curb crime
and prevent continuation of violence in our
land. As the price for this, we are saddled
with amendments that threaten our liberties
and may remain to haunt us.155
Members of Congress referred to the blistering public
pressure they faced to crack down. Torrents of constituent mail flowed into their offices, and businesses, nonprofits, and civic organizations lobbied for passage of
the crime bill. Democrats had witnessed the departure
of several colleagues in the midterm elections in
1966—forty-seven representatives and three senators
were voted out of office (in addition to eight governors), some for their vote against a crucial crime
bill.156 A former member of Congress and the House
Judiciary Committee wrote the president urging his
veto of Safe Streets: “One of the reasons I am no
longer in Congress is because I voted against the
D.C. [crime] Bill.”157 Now, fourteen liberal Democrats
in the Senate were facing an election a few months
away where crime was a major campaign theme.
With only seventeen members of the House voting
against Safe Streets and only four in the Senate, no
federal agency had come out against it, and, with an
impending election four months hence, Johnson’s
hands were tied, even though the bill was unrecognizable from the administration’s proposed legislation
and did not include any of the recommendations of
the crime commission’s 18-month study. Although
Warren Christopher called the bill “perplexing” and
noted that Congress should have given the president
a much better bill, he urged the president to “take
into account the very large majorities which supported the bill in Congress,” who threatened to
153. Doug McAdam and Kelly Moore, “The Politics of Black
Insurgency, 1930– 1975,” in Violence in America: Volume 2 Protest, Rebellion, Reform, ed. Ted Robert Gurr (Newbury Park, CA: Sage Publications, 1989).
154. For an in-depth recounting of the maneuvering behind
Safe Streets, see Harris, Fear of Crime.
155. John G. Dow (D–NY) quoted in Harris, Fear of Crime, 109.
156. Sundquist, Dynamics of the Party System.
157. Letter to the President from George W. Grider, 13 Jun.
1968. LBJ Library, LE/JL 3 6/13/68–6/19/68.
override a veto.158 Johnson reluctantly signed it five
hours before the deadline saying it contained “more
good than bad” and with a request that the Congress
remove the electronic surveillance provisions.159 Most
legislators and journalists saw it as a capitulation to
public hysteria.160 Another aide, Harry McPherson,
wrote in a memo to the president that it was “the
worst bill you have signed since you took office.”161
The resulting law, 134 pages in length, was the
“most extensive federal anti-crime measure in the
nation’s history.”162 Safe Streets, which began in a
1965 request from the president for funds for training
local law enforcement through categorical grants,
gun control, right to privacy (limiting wiretapping),
drug control, and agency reorganization, was transformed into a radically different bill before passing
in 1968. The 1968 act overturned three major Supreme
Court rulings relating to defendants’ rights, removed
the federal courts’ ability to review state court rulings
on voluntary confessions, made a huge investment in
riot control, and dramatically expanded law enforcement’s powers relating to wiretapping.163 Much of
the gun control legislation requested by Johnson
was either not acted on or watered down significantly.
In short, this bill had become a “vehicle for ‘law enforcement’ rather than ‘criminal justice’ in its journey
through the legislature.”164 Street crime and riots
were folded into same crime package. It was as
much about political dissidents and racial conflict in
the cities as it was about ordinary crime, perhaps
more so. In the first month, $4 million was disbursed
to forty states for riot prevention and control.165
Most importantly, under Safe Streets, the federal
government would disperse millions of dollars in
aid to state law enforcement, the first piece of major
legislation to implement block grants and the
158. Letter to Charles J. Zwick, Director, Bureau of the Budget
from Warren Christopher, Deputy Attorney General, LBJ Library,
Legislation LE/HI– LE/LE 3 [1 of 2].
159. “President Signs Broad Crime Bill, With Objections,” in
Crime and Justice, 378. Originally printed in The New York Times,
20 Jun. 1968.
160. These sentiments were common in Congress. One anonymous legislator quoted in Business Weekly said: “‘All anticrime bills
have been painted ‘antiriot’ whether they are or not. When that’s
the case, you don’t dare vote against them this year’” (“GOP
Steals a March With Crime,” Business Weekly, 19 Aug. 1967, 132).
161. Qtd. in Barry Mahoney, “The Politics of the Safe Streets
Act, 1965 –1973: A Case Study in evolving Federalism and the
National Legislative Process” (Ph.D. diss., Columbia University,
1976).
162. Congress and the Nation, 2:322.
163. Specifically, it allowed any prosecutor with the permission
of a judge to tap or bug a suspect of a present or future crime punishable by at least one year in prison. Johnson was so against the wiretapping title of Safe Streets that he sent instructions to every
department and agency prohibiting them from using it. His administration was confident that it would ultimately be ruled unconstitutional by the Court.
164. Lynch and Goldberg, “Dollars and Sense of Justice,” 6.
165. Feagin and Hahn, Ghetto Revolts.
258
VESLA M. WEAVER
revenue sharing concept. It was only the second
program of federal assistance to the states designated
for crime control (with ancestral ties to the first
(OLEA), established three years earlier and expired
by the passage of Safe Streets). Compared to the
1965 LEAA’s appropriation of $10 million, it gave
$400 million in the first two years for the state planning grants, with a larger budget in following years.
Despite the accuracy problems of the Uniform Crime
Reports, a 1968 effort to create a National Crime Statistics Center failed in Congress.166 When Representative Larry Winn, Jr. (R – KS) wrote to the president
complimenting his crime package but also voicing
the concern that it did not contain anything to
“upgrade city and state crime reporting,”167 he
received a sheepish response from Assistant Attorney
General Fred Vinson saying that the Safe Streets Act
prohibited the federal government from controlling
what the states did with the funds and that it was “in
deference to this principle that no positive authorization for crime reporting has been included.”168 In
1973, the LEAA initiated the National Crime Survey.
Based on victimization rates rather than reported
crime, it was designed to get more accurate data on
crime. The National Crime Survey actually showed
higher crime than the FBI reports (as did most
other victim-based reports, including the president’s
crime commission), but it also demonstrated that
the crime rate has been relatively stable over time,
whereas the FBI reports showed a rapid increase in
crime in the 1960s and early 1970s.169
If the support for punishment was unrelated to
race, then we should expect conservatives to be
pushing for stricter punishments for all types of violence and criminal activity. The near universal
support for more aggressive criminal justice from
the conservative coalition was not extended in one
area. They tried to exclude criminal penalties for violations of federally-protected civil rights on account of
race (H.R. 2516 and S. 1362 “Interference with Civil
Rights Plus Criminal Legislation”). Thus, criminal
justice punitiveness cohered more along racial lines;
166. CQ Almanac 1968.
167. The letter from the Congressman said: “Of some concern
to me, however, was the absence of a proposal to upgrade city and
state crime reporting. It would seem that with the amount of aid
granted to law enforcement agencies under the Safe Streets and
Crime Control Act of 1967, the Federal government could, at the
very least, require certain standards to be met in crime reporting”
(Letter from Congressman Larry Winn, Jr. to the President.
7 Feb. 1967, LBJ Library. SP 2–3/1967/JL/Pro/A –Z).
168. Letter from Fred M. Vinson, Jr, Assistant Attorney
General, Criminal Division, Dept. of Justice to Honorable Larry
Winn, Jr., 21 Feb. 1967, LBJ Library. SP 2–3/1967/JL/Pro/A –Z.
169. In 1965, the Crime Commission ran a survey to get an
accurate measure of crime. The results showed that crime was
much higher than the UCR reports, or 2,120 crimes per 100,000
compared to 1,434 per 100,000 (Philip H. Ennis, Criminal Victimization in the United States: A Report of a National Survey (Chicago:
National Opinion Research Center/University of Chicago, 1967).
indeed, as the next section discusses, the racialized
crime innovations were also bound up with an
attack on civil rights legislation, the poverty programs
of the Great Society, and Supreme Court decisions.
The Scapegoat: Civil Rights
Criminal justice policies were not the only arena
affected by the fusion of crime and civil rights;
several Civil Rights bills suffered defeat on the justification that they would be seen as rewarding riots and
criminality. Consider the memo of one Johnson
aide passing on the sentiments of Representative
Bill Hungate (D– MO), a member of the Judiciary
Committee:
[T]he Civil Rights Bill will not pass in anything
like its present form; the feeling on the floor is
that we have given enough to Civil Rights
workers who have just been stirring up
trouble; that the bill could not have come to
the floor at a worse time.170
Indeed, after 1965, Congress’ civil rights agenda slowed
considerably. More of the Kerner Report’s recommendations on law enforcement were implemented than its
vast program for reducing deprivation in the cities.
Crime became an excuse for not expanding civil
rights and social justice. Civil rights and crime were
inversely related on agenda; as action on civil rights
withered, criminal justice was expanded.
The focus on violence had predictable effects, spilling over into discussions of civil rights. As racial disorders spread throughout cities across the country,
civil rights related agencies and court decisions
came under attack for being complicit in the disorder,
in the strong version, and for indirectly aiding racial disorder by giving in to the early demands of “agitators,” in
the more discreet account. In the 1967 debates over
extending the Office of Economic Opportunity, one
of the primary arguments against it was that poverty
programs were connected to black insurgency and lawlessness. Representative Paul Fino (R–NY) maintained:
There is little doubt that the Office of Economic Opportunity has been at the bottom of
much of the rioting and troublemaking which
we have sadly witnessed in the past few years
throughout this country . . . . It has hired
muggers and criminals. It has subsidized revolution and social agitation.171
In the 1967 congressional debates over passing the
anti-riot act, law enforcement officers from various
cities testified that antipoverty workers had participated in the riots; indeed, one accused the OEO of
giving a grant of $7,700 to a leader of the riots in
170. “Memorandum for Barefoot Sanders from Sherwin
Markman,” 14 Aug. 1967, LBJ Library. LE/HU2 4/12/67–3/11/68.
171. Qtd. in Carol A. Horton, Race and the Making of American
Liberalism (Oxford: Oxford University Press, 2005), 183.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 259
Nashville.172 Some, such as Representative William
Chappell (D – FL), identified the earlier “permissiveness” of the Supreme Court as a key cause behind
the riots: “But when the courts ruled that certain disruptive marches were in order because of their own
sense of social reform, the destruction and riots that
followed must be laid at the judicial doorstep.”173
In the final section of this article, I show how the
conservative policy monopoly expanded and the new
paradigm was further enshrined in crime legislation.
Continuing to Get Tough and “Combat Lawlessness”:
The Nixon Years
After the assassination of Martin Luther King, Jr., in
April 1968, 142 cities across the U.S. erupted in racial
confrontations, resulting in 43 deaths and 27,000
arrests.174 The District of Columbia witnessed arguably
the most severe violence: property damage included
1,200 buildings and homes torched, while the human
toll included 12 dead, 1,200 injured, and 7,600
arrested.175 Hoover’s monthly crime clocks in the
Uniform Crime Reports depicted an epidemic (Figure 8).
Presidential candidate Richard Nixon launched a
frontal assault on Johnson’s approach by saying the
crime rate would decrease more by doubling convictions than quadrupling the war on poverty and that
now was the time to start doing something concrete
rather than studying crime with more commissions.
Nixon released a position paper titled Toward
Freedom from Fear, countering the root causes paradigm: “We cannot explain away crime in this
country by charging it off to poverty.”176 Law and
order was the centerpiece of the Nixon campaign,
having learned much from Ronald Reagan’s successful deployment of the law and order theme in the
1966 California gubernatorial election. In the
course of the 1968 presidential campaign, Nixon
dedicated seventeen speeches solely to the topic of
law and order. One televised campaign advertisement
began with frightening music accompanied by
quickly flashing pictures of protesters, violence,
bloodied victims, and mayhem. An authoritative
voice followed, saying:
It is time for an honest look at the problem of
order in the United States. Dissent is a necessary ingredient of change, but in a system of government that provides for peaceful change,
there is no cause that justifies resort to
172. CQ Almanac 1967, 784.
173. William V. Chappell, “Crime: Some Call it Dissent”
[address 30 Mar. 1970], Vital Speeches of the Day 36 (1970): 424.
174. U.S. Senate, Permanent Subcommittee on Investigations
of the Committee on Government Operations, Staff Study of Major
Riots and Civil Disorders.
175. Ted Robert Gurr, “Protest and Rebellion in the 1960s: The
United States in World Perspective,” in Violence in America: Volume 2
Protest, Rebellion, Reform.
176. Nixon, “Toward Freedom from Fear,” 12936.
violence. Let us recognize that the first right
of every American is to be free from domestic
violence. So I pledge to you, we shall have
order in the United States.
At the end a caption read: “This time . . . vote like your
whole world depended on it . . NIXON.”177 While
sanitized from the outright racism of the Goldwater
and Wallace campaigns, Nixon’s strategy was based
on the linkages between racial conflict and lawlessness; indeed, in viewing his own campaign ad, he
remarked triumphantly that it “hits it right on the
nose. It’s all about law and order and the damn
Negro-Puerto Rican groups out there’.”178
Hubert Humphrey’s campaign tried to respond,
toughening their approach. Humphrey accepted the
Democratic party’s nomination in 1968 by saying
“rioting, burning, sniping, mugging, traffic in narcotics, and disregard for law are the advance guard of
anarchy, and they must and they will be stopped.”179
With the mandate of the “law and order” election
behind him, the Nixon administration submitted
twenty pieces of anti-crime legislation (including pretrial detention) and issued a memo declaring the
DOJ’s right to use electronic surveillance on any subversive group without getting permission from the
courts. Nixon continued the tradition of his predecessor to make speeches and messages on crime.
However, unlike Johnson, who rarely deplored lawlessness without also mentioning the squalor of
poverty in the cities, Nixon blamed crime on permissiveness—of society, of parents, and of the courts.
Fear was prominent in his speeches:
If we allow it to happen, then the city jungle will
cease to be a metaphor. It will become a barbaric reality, and the brutal society that now
flourishes in the core cities of America will
annex the affluent suburbs.180
In 1969, the National Commission on the Causes and
Prevention of Violence (commonly known as the
Eisenhower commission) issued their final report To
Establish Justice, To Insure Domestic Tranquility. Containing a mixture of solutions, it painted a picture of
what the future city would be like if the problem of
violent crime continued:
armed citizen volunteers in cars will supplement inadequate police patrols . . . . Highspeed, patrolled expressways will be sanitized
corridors connecting safe areas . . . . Armed
guards will “ride shotgun” on all forms of
public transportation . . . . The ghetto slum
neighborhoods will be places of terror with
177. American Museum of the Moving Image.
178. Quoted in Philip A. Klinkner and Rogers M. Smith, The
Unsteady March: The Rise and Decline of Racial Equality in America
(Chicago: University of Chicago Press, 1999), 292.
179. CQ Almanac 1968, 1042.
180. Nixon, “Toward Freedom from Fear,” 12936.
260
VESLA M. WEAVER
Fig. 8. Time magazine cartoon from October 4, 1968.
Note: Reprinted with permission from the original publisher, the Milwaukee Journal-Sentinel.
widespread crime, perhaps entirely out of
police control during night-time hours.181
If Johnson took the federal government’s role in crime
control from zero to a hundred in scale, Nixon took it
from one side of spectrum to the other in approach.
Crime control during the Nixon administration continued the tradition of expanding federal involvement
with more state power over the administration of funds,
and both of these along with a more tough orientation
to crime, law enforcement, and criminal justice. Based
on Nixon’s request, Congress quadrupled appropriations for the LEAA, going from $59 million in 1969
to $268 million in 1970.182 Nixon declared drug
abuse the most important problem in the United
States in 1969 and announced a “War on Heroin,”
sending several narcotics bills to Congress concentrated on punishment (rejecting the Commission’s
report recommending decriminalization). Meanwhile,
the Controlled Dangerous Substances Act of 1969 set
off a contentious debate over jurisdiction between
HEW and DOJ officials over whether drug addiction
should be an issue for law enforcement or health. In
1970, Nixon formed the Office of Drug Abuse Law
Enforcement (ODALE), creating the crime strike
forces that greatly increased policing and surveillance
in black communities.
The National Commission on the Causes and
Prevention of Violence recommended “a national
commitment to double our investment in the administration of justice . . . a modest price to pay to ‘establish justice’ and ‘insure domestic tranquility’ in this
complex and volatile age.”183 Ultimately the LEAA
would be amended six times and was expanded financially and given more authority over criminal justice at
lower levels of government. The initial expenditure
for the LEAA went from $10 million in 1965 to $850
million in 1973.184
181. National Commission on the Causes and Prevention of
Violence, To Establish Justice, 44.
182. CQ Almanac 1969, 687.
183. National Commission on the Causes and Prevention of
Violence, To Establish Justice, 157.
184. Lynch and Goldberg, Dollars and Sense of Justice.
By 1970, the riots had subsided but the war on
crime campaign was in full swing and showed no
sign of abating. During his campaign, Nixon had
focused on crime in the District of Columbia,
calling it the “crime capitol of the nation” and a
“national laboratory” for his proposals. Despite the
fact that it ranked twenty-seventh (of fifty-two large
cities) on crime, trailing far behind Denver,
Chicago, New York, and others, Nixon submitted an
anti-crime bill to Congress specifically concerned
with Washington, D.C. The District of Columbia
crime bill of 1970 was the “most innovative” and
expansive of Nixon’s proposed legislation. It was so
broad that it was opposed vigorously by conservative
Representative Sam Ervin—who had usually led the
campaign for punitive crime policies in the
Senate—because he thought it unconstitutional:
“the Nixon Administration’s major contribution to
the D.C. Crime Bill was a grab bag of some of the
most bizarre and repressive crime-control measures
ever proposed to the Congress,” warning that “we
must be extremely skeptical of the other administration ‘law and order’ proposals which are also advertised as ‘indispensable’ for crime control.”185 The bill
mandated five-year sentences for anyone convicted of
a second armed offense and allowed life sentences for
offenders convicted of a third a felony, extended
broad wiretapping authority, established “no knock”
policies for police (going directly against the
Court’s search and seizure rulings), reorganized District Courts (which ultimately doubled felony indictments), allowed juveniles to be tried as adults
(resulting in 60 percent of youths going to adult
courts), eliminated juvenile jury trials, and allowed
“preventive detention” (ultimately, overturning the
Bail Reform Act of 1966 to allow people to be held
without bail).186 The preventive detention proposal
185. Sam J. Ervin, Jr., “Failure of Preventive Detention,” in
Crime and Justice, 394. Originally printed in The New York Times, 19
Aug. 1972.
186. The “no knock” provision meant that police could legally
enter a residence without knocking first if lives would be endangered or if the evidence would be compromised.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 261
was the most controversial, allowing some “dangerous” suspects to be detained for sixty days before conviction. Despite a campaign against it in the Senate by
civil libertarians, it passed on the eve of the election.
More than just a bill for the District, this legislation
“also represented the national crime policy of the
Nixon Administration.”187
The Eisenhower Commission had originally
provided a dual emphasis on unemployment
and ghetto conditions. Its report argued that
“Warring on poverty, inadequate housing and unemployment, is warring on crime. A civil rights law is a
law against crime.”188 However, this dual focus
was not reflected in policy. While law enforcement
was expanding, poverty programs were reduced or
eliminated altogether. Law enforcement was the
only program that escaped cuts, and actually
expanded, in Nixon’s budget proposals. There
was almost no new civil rights legislation. Impact
Cities, a law enforcement program, replaced Model
Cities.
When Nixon entered the White House, the crime
problem that he had helped to fan, awaited his
administration; now he would be in the position of
having to make the crime rates go down, or in the
words of one journalist, “he was being asked to sit
down on the chair that he had scattered tacks
on.”189 Crime had actually gotten worse since Republicans took over, increasing 25 percent from 1968 to
1970. Under the Omnibus Crime Control and Safe
Streets Act of 1968, the Attorney General was “to
collect, evaluate, publish and disseminate statistics.”190 Using this authority, Nixon’s Attorney
General, John Mitchell, personally submitted the statistics, putting a different spin on crime increases that
would have made the “law and order” policies look
bad. J. Edgar Hoover’s report on crime statistics was
rewritten by Mitchell’s public relations staff to show
that crime had improved during the Nixon administration in comparison to the Democratic administrations that preceded it. One tactic used to make it
seem like crime was decreasing and was much worse
during the Johnson years was accomplished by using
rate of increase instead of the crime rate. Thus, for
instance, in the first three months of 1970, the
Uniform Crime Reports showed an increase in crime
by 13 percent compared to the first three months of
1969. Mitchell’s office revised this statement to say
“the rate of increase of violent crimes in the first three
months of 1970 slowed by 7 percent in the major
cities of the nation—and by 3 percent in the nation
187. Warren Weaver, Jr., “Senate Approves Stiff Crime Bill For
Washington,” in Crime and Justice, 382. Originally printed in The
New York Times, 24 Jul. 1970.
188. National Commission on the Causes and Prevention of
Violence, To Establish Justice, 55.
189. Harris, Justice, 105.
190. CQ Almanac 1968.
as a whole.”191 If the Nixon administration could
show that its harsh policies were working lower, it
could use this in the 1972 election: “By 1971, several
aides in both the White House and the Office of Management and Budget (OMB) were regularly prodding
LEAA to move faster to provide concrete evidence of
a federal impact on crime rates.”192 In addition,
Nixon pointed to the District crime bill as the
reason behind crime drops in the nation’s capital
during his tenure. The “audit,” conducted by a
major contributor to his campaign (Ernst and
Ernst) found a decrease in crime of 50 percent.193
However, an analysis by the Brookings Institution
found that the decrease was due to a change in the
value of stolen goods, decreasing the number of
crimes classified as burglary or larceny.194
Former Attorney General Ramsey Clark warned
against the drive for more punitiveness:
Those who stimulate prejudices in public
opinion, who appeal to base instincts of fear,
who protest their willingness—even desire—
to sacrifice freedom on the altar of order add
immeasurably to the burdens of achieving
excellence in the performance of criminal
justice agencies.195
Those agreeing with Clark were now in the minority;
even liberal Democrats did not talk about civil rights
without deploring crime. In the 1969 mayoral and
1970 midterm elections, there was a clear attempt to
reposition themselves on the crime issue. The law
and order stance had been vindicated in the two
preceding elections and crime was still the number
one issue among voters, competing only with race
relations (arguably, part of the same class of issues).
Seeking to suspend the charge of being soft on
crime and coddling criminals, many posed in campaign photos with police, and threw their support
toward anti-crime legislation formulated by the
Nixon administration.196 New York City Mayor John
Lindsay, having been defeated in the Republican
primary, continued the campaign as a Liberal party
candidate, stressing that he had increased the police
force by 5,000 and promised more if reelected. Relatively unknown candidates with law and order
191. Qtd. in Fred P. Graham, “Mitchell and Hoover: Focus
Differs on Crime Data,” in Crime and Justice, 269; emphasis added.
Originally printed in The New York Times, 8 Sept. 1971.
192. Cronin, Cronin, and Milakovich, U.S. v. Crime in the Streets,
95.
193. Hannah Shields and Mae Churchill, “The Fraudulent War
on Crime,” The Nation, 21 Dec. 1974, 648– 55.
194. Robert B. Semple, Jr., “Nixon Says He Kept Vow To Check
Rise in Crime,” in Crime and Justice, 271. Originally printed in The
New York Times, 16 Oct. 1968.
195. Ramsey Clark, “Liberty and Safety,” in Crime and Justice,
384. Originally printed in The New York Times, 19 Nov. 1968.
196. John Herbers, “Democrats Shift to Right, in Line with
G.O.P., on Crime Issue,” in Crime and Justice, 268–69. Originally
printed in The New York Times, 12 Oct. 1968.
262
VESLA M. WEAVER
platforms upset elections in several mayoral elections
from New York to Minneapolis.
Shortly after the D.C. crime bill, the usual law and
order suspects—McClellan, Hruska, and Ervin—
sponsored yet another bill. The Organized Crime
Control bill, despite its title, actually increased penalties for a wide variety of offenses, most of which were
not related to organized crime syndicates at all. It
changed criminal procedure, establishing mandatory
sentence enhancements for habitual offenders. The
template for the habitual offender legislation in the
1970s, it allowed judges to enhance the sentence of
a convicted criminal by a mandatory thirty years if
the offender had two prior convictions or a first-time
offender who had committed a crime deemed by the
judge to be “a pattern of criminal conduct” or if the
criminal was deemed to be a “dangerous special
offender.” Senators Philip Hart and Ted Kennedy proposed that it be amended to apply only to organized
crime offenses but the amendment failed. The resulting bill passed in the Senate by a vote of 73 to 1.
The policies passed in these few years did not
simply augment state crime control efforts or
extend a path already traveled in previous eras. This
infusion of federal assistance to state systems of
crime control was the first of its kind and the
change it wrought cannot be overstated. The LEAA,
once a small pilot program initiated by Johnson and
his desire to root out the causes of crime and
debated in Congress on one single day without opposition, had become a mammoth institution to
“combat lawlessness” and resulted in the funding
and creation of 80,000 state and local projects. Ironically, the same “states rights diehards” that the
Johnson administration worried about offending in
passing the LEAA in 1965, came to be the main activists in the war on crime. For the first time, the federal
government launched a full scale program of aid to
the states with appropriations totaling $7.25 billion,
which today translates into approximately $28 billion
dollars, however, the cost was probably much greater
because of the matching funds required by states.
Most of the grant money went to suburbs and rural
areas rather than cities, and riot control funds went
to hardware (including an armored tank in Birmingham), weapons, teargas, and training (i.e. “riot
squads”), rather than police-community relations.
LEAA’s first report showed the breakdown of how
federal funds were distributed: 3.5 percent to crime
research; less than 5 percent to police relations with
the community; 5.5 percent to improving courts; 8.5
percent to rehabilitation; 22 percent to riot control;
and the most, 30 percent, to the police.197 The
LEAA was given a budget twice the size of the FBI
and half of the total DOJ budget; it became the
“fastest-growing agency in the federal government”
197. Harris, Justice, 178.
in the 1970s.198 Once in place, this legislation and
the agencies it spawned were extremely durable and
the DOJ’s role in crime control would remain to the
present, but that is another chapter of the historical
development of criminal justice.
Alternatives
If reducing crime was primary goal of legislators, policy
instruments were available, including the one that had
been favored for the existence of the republic—that
crime was a problem for local government and
federal involvement would constitute a breach of the
democratic impulse against a national police state.
Actors had to choose to break with past approaches.
The characteristics of policies themselves are inconsistent with the interpretation that a break was an inevitable response to crime passing some unacceptable
threshold. The policies initiated and ultimately
enacted were not logically connected to the goal of
crime control; crime was rising fastest in rural areas,
the category of crime increasing most was propertybased offenses, and the reasons for the increase
ranged from demographic changes from the baby
boomers to migration. Several components of the
legislation discussed here suggest additional motivations and aims.
The coalition behind the legislation strategically
twisted legislation in directions that had more to
do with racial ideology. Many obvious examples
include exempting Safe Streets from provisions of
the Civil Rights Act and barring federal crime
program funds from going to the OEO. The crime
legislation was purposefully designed so that
federal funds would be controlled by state governments, who could in turn distribute funds to
localities without any fear of civil rights challenges.
Positions on the crime policies cohered more
along lines of racial ideology; indeed, debates over
crime legislation featured significant attention to
race and carried significant implications for racial
equality (such as block grants to state governments
rather than directly to cities with significant populations of blacks). Votes on key provisions bore striking similarity to the vote breakdowns on civil rights
legislation. Votes cast in opposition to open
housing, busing, the Civil Rights Act and other
measures time and again showed the same divisions
as votes for amendments to crime bills. Moreover,
those members of Congress who voted against civil
rights measures proactively designed crime legislation and aggressively fought for their proposals.
And this stance was itself inconsistent with motivation that was purely a conservative ideological
stance against crime. For example, the same actors
who tried to pass criminal penalties for freedom
198. Christian Parenti, Lockdown America: Police and Prisons in the
Age of Crisis (New York: Verso, 1999), 14.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 263
rides and sit-ins were the major initiators of punitive
crime legislation; but they also bitterly opposed a bill
for penalties for violence against civil rights workers.
Moreover, they pursued policies at odds with what
their ideology of limited federal government would
dictate. The same group that opposed civil rights legislation on the grounds that it should be left to state
control were at the helm of passing federal criminal
justice legislation that would extend the federal government’s authority. Thus, when the goals of the group
defeated on civil rights pointed to a stance of more
federal power, they abandoned the states-rights argument. Further, crime did not matter to conservatives
until it was clear that it could be used as new currency
to reestablish political advantage. Even in the 1960 election with Nixon, a time when crime had been rising
substantially, crime is not a subject in campaign
speeches. Together, these examples highlight a basic
conclusion: it wasn’t in their interest to push crime
except for race.
Until racial disorder was defined as a crime
problem, there was no mobilization on the crime
issue and very little policy change. In fact, on at least
three prior occasions proposals for federal assistance
to local law enforcement had been evaluated, first in
the Wickersham Commission’s report during the
Hoover administration, then a federal aid program
was considered 1955 at President Eisenhower’s
request (to give local governments federal aid to
help them deal with juvenile crime), and again in
1961 by the Civil Rights Commission’s report to Congress. In all these cases, despite strong endorsement
from the administration, opposition to a nationalized
police force and a longstanding tradition of local jurisdiction was a check on expansion and the recommendations were rejected. Policy change was a
likely outcome when a set of factors converged and
were catalyzed by elite goals. The coalition of conservatives who now had a stake in the crime problem,
now supported a federal intervention and ensured
that it “converged with, and sustained, intense
southern provisions.”199
Current explanations obscure these political interests, made even more urgent by the loss on several significant pieces of civil rights legislation. So for
different reasons, then, each of the frameworks
(opposed as they are about the role of crime) miss
the political dynamics that led to the transformation
of policies and each isolates crime from the racial
context and distribution of power in which it came
to matter politically. Avoiding a myopic focus on
crime rates allows a view of the entire body of considerations that went into the design of criminal
justice policies. The theory of frontlash argues that
crime was used in the service of reacting to racial dislocations, a strategy that was vindicated by the rising
199. Katznelson, When Affirmative Action was White, 61.
crime rate. Without consideration of elites’ strategic
preferences, these alternative frameworks cannot
explain the sudden mobilization of the crime issue,
its momentum, and its connection to the rights
revolution. They come up short in explaining why
policy disputes over criminal justice formed along
racial cleavages or why crime became entangled
with racial unrest.
Other alternatives deserve mention; the collapse of
the rehabilitation approach and the appetite for punishment among the public have become adages used
to explain the punitive doctrine in the U.S. both historically and in comparative perspective. Casual
observers to experts of criminology frequently attribute the punitive turn in the United States to the collapse of the “rehabilitative ideal” as an approach to
crime. According to this account, two highly visible
publications are credited with the reversal of course
in criminal justice: Robert Martinson’s 1974 essay
“What Works?” in the Public Interest and James Q.
Wilson’s bestselling 1975 book, Thinking about Crime.
The former argued that there was no evidence that
rehabilitation worked in reducing recidivism, while
Wilson’s book extended this theme the following
year, arguing that the approach to crime should be
crime-specific and concerned with manipulating the
costs of offending. While these manifestos were extremely influential pieces, they were more likely consequences than causes of the punitive policy changes.
Published long after Safe Streets, the District of
Columbia crime bill, the Organized Crime Control
Act, and key critical policy changes, they were part
and parcel of the punitive momentum beginning a
decade prior to their publication. This is not to say
the arguments they advanced were insignificant;
much to the contrary, they likely contributed
additional ammunition for the punitive problem
framing and helped maintain a course that had
already been in motion for several years. But the rehabilitative approach to crime did not “collapse” of its
own volition.
Another alternative explanation that is also deeply
entrenched in thinking about crime and the “get
tough” movement is that the public drove the criminal justice crackdown while legislator’s merely
responded to public hostility to crime. A full examination of public opinion on crime and criminal justice
would demand another analysis and is fraught with
problems of inconsistent survey measures during
the period of interest. However, a simple exploration
of the timing of public opinion shifts on crime provides a crude test of this alternative. Figure 7
depicts the proportion of the public choosing
crime as the most important problem in the nation
over time; the salience of crime remains low until
1966, after the issue was a key theme in the ’64 election and indeed after the first legislative proposals
were enacted into law. Similarly, a composite
measure of public opinion over time shows public
264
VESLA M. WEAVER
Fig. 9. Crime Salience and Punitive Attitudes Over Time.
Sources: Crime Concern (as measured by the Most Important Problem) is based on Baumgartner and Jones’s Policy Agendas Project data.
Composite measure is based on original indicator generated by author using WCALC.
preferences on criminal justice were actually
decreasing in punitiveness until turning upward in
1967 (see Figure 9).200 Several other scholars echo
the finding that public concern with crime is the
tail to the kite of elite initiative. Beckett’s study
finds that public concern with crime is correlated
with elite attention and appeals around crime, but
200. I compiled all polls related to criminal justice that were
asked at least two times between 1950 and 1990 and calculated a
composite measure of ‘policy mood’ using James Stimson’s algorithm. This technique enables analysis of global public opinion
using survey marginals on related and overlapping survey items.
For more information, see Paul M. Kellstedt, “Media Framing and
the Dynamics of Racial Policy Preferences,” American Journal of Political Science 44 (2000): 239–55; Paul M. Kellstedt, The Mass Media
and the Dynamics of American Racial Attitudes (Cambridge, UK: Cambridge University Press, 2003). The program can be found at www.
unc.edu/ jstimson last accessed: 13 Dec. 2005. To gather items on
criminal justice, I searched Gallup, the Odum Institute holdings,
several national surveys including the ANES and GSS, as well as
Roper Center holdings. The resulting criminal justice composite
measure includes 11 series containing questions on the death
penalty, rights of the accused, harsh courts, and spending on
various aspects of criminal justice. By treating these separate indicators as part of a global disposition, I sidestep the problem of
inconsistent survey measures that has prevented scholars studying
public opinion on race and crime from longitudinal analysis.
not with crime.201 The public did not register high
levels of crime concern until after Goldwater’s
campaign appeals and particularly his nomination
speech.202
Two scholars located the original output from surveys
with crime measures during the 1960s and found that a
disturbing number of surveys were blatantly misreported or conflated categories of lawlessness and
crime. Moreover, they show how the media selectively
reported public polls on crime and surveys were used
to manipulate the image that public opinion was favorable. Survey categories represented elite discourse
rather than public perception and lumping together
categories
was
an
“elite-sponsored
social
construction.” The concepts of crime and race (civil
rights) became related after elite initiative, with the
public registering changes after elite discourse. Crime
was not the uppermost concern to the public, who
until fairly late distinguished race, civil rights, and insurgency from crime; “The press and the public were
201. Beckett, Making Crime Pay.
202. Dennis D. Loo and Ruth-Ellen M. Grimes, “Polls, Politics,
and Crime: The “Law and Order” Issue of the 1960s,” Western Criminology Review 5 (2004): 50– 67.
RACE AND THE DEVELOPMENT OF PUNITIVE CRIME POLICY 265
accustomed to viewing crime in terms of judicial
leniency, civilian complaint review boards, interrogation, and capital punishment. They did not understand how crime in the streets and the 1964 summer
disorders in Harlem and Philadelphia related to the
criminal justice system’s lack of financial resources.”203
Conclusion
In this article, I have demonstrated the centrality
of racial struggle in the political development of
criminal justice at the national level. Relying on a
rich documentary history, I have shown how the
reaction to the success of the civil rights movement
became embedded in a separate policy process.
Resistance to civil rights was reconstituted in a
new policy domain by turning objective conditions
into political capital. Changes in the racial status
quo, and not simply rising crime, were an important
and overlooked factor, and in its strongest version—
punitive criminal justice was part of the price of civil
rights liberalizations. The transformation of criminal justice was not merely an exercise in crime
fighting; it both responded to and moved the
agenda on civil rights. Rather than a temporal
coincidence, the graveyard of civil rights legislation
was the same place where crime bills were born.
203. Caplan, “Reflections on the Nationalization of Crime,” 612.
Much of the legislative activity on crime came out
of the same hand that fed the early opposition
to civil rights, leaving their mark on public policies
long after the riots and demonstrations ended.
Through a frontlash, rivals of civil rights progress
defined racial discord as criminal and argued that
crime legislation would be a panacea to racial
unrest. This strategy both imbued crime with race
and depoliticized racial struggle, a formula which
foreclosed earlier “root causes” alternatives.
Viewed in this way, the truism that a crime wave
was the cause of legislative activism on penal
reform becomes problematic. Punitive crime policies were borne of racial struggle; violence was
only one part of a larger, more complex set of
factors placing crime on the agenda and ultimately,
leading to the passage of policies that would
change the nature of punishment. The emergence
of crime on the agenda was as durable as it was
sudden, molding the path it traveled in the next
few decades. The contestation over this issue
was not a flash fire that quickly burned out;
rather, the paths that were blazed in this moment
had a continuing impact on crime policy to the
present, though the racialized connection would
shift from being a causal argument and implicit
rhetorical device to being a tangible outcome
once the effects of these policies manifested
themselves.